A. Culture change -3-11.pdf

Topic 1. Culture §1. The Apprehension of Culture The power of the English-speaking world cannot be measured exclusively in terms of material factors (production of goods and services, military and scientific capacity, control over energy and monetary flows, …). It also resides in the mind. At a time when English is spoken by 1.53 billion people around the globe as a primary, auxiliary or business language , most of our 1 cultural references are permeated by the English-speaking world, whether referring to literature, music, cinema, the media, clothing, legal or economic concepts (and even our eating habits )… Beyond enhancing our understanding of these cultural references, it is 2 important to analyze the meeting-point between the English-speaking world and the rest of the planet, be it to shed light on the gap between rhetoric and reality, or to tell us more about ourselves. Certain words may be clearly defined: e.g. “’Consumer’ means an individual who enters into a transaction primarily for personal, family, or household purposes” (UCC, §1-201). Certain subjects can be clearly circumscribed: e.g. Roman law. The word “culture” is different: it has no precise definition. Unarguably, we are referring to the historic, expressive and moral bloodstream that runs in a given community, but what else…? If we approach culture not only as the arts (culture as expression), but also in its anthropological sense as values and norms that a people share, the word “culture” appears to be one of the most bewildering words in the English language. What does it cover? Where does it begin? Where does it end? How can the notion be encapsulated, circumscribed within precise limits? What is our awareness of culture? All we can say for sure is that culture is madly undefinable and utterly ubiquitous. At the same time, culture is unassuming and hardly noticeable. We are all surrounded by culture and take it for granted. The word “culture” refers to a common frame of reference that spans a set of beliefs, mores and usages that has developed and evolved in an environment, taken either on a small scale, with respect to a legal person (e.g. the culture of Wal-Mart), or on a large scale, with respect to a community (today’s “discount culture” or “compensation culture”). These broad 3 4 1 Cf. website of the Global Language Monitor at http://www.languagemonitor.com/ (visited September 1, 2020). The widespread usage of the English language naturally draws passionate – defensive – reactions: cf. inter alia, Claude Hagège, Combat pour le français (Paris: Odile Jacob poches, 2006). For a more nuanced approach to the language issue, cf. Alain Rey, L’amour du français (Paris: Denoël, 2007). 2 To point, Europeans spend less and less time actually cooking. They prefer pre-cooked meals, pizzas, sandwiches, and fast-food restaurants. In all but name, “TV dinners” are taking over many European households. Elizabeth Kolbert points out that, “[i]t is probably no coincidence that, in a period when the rest of the world has come to look more like Americans, U.S. corporations have been making significant investments – some fifty-five billion dollars a year – in food-processing and distribution facilities abroad”. Cf. Elizabeth Kolbert, “XXXL. Why Are We So Fat?”, The New Yorker, July 20, 2009, pp. 73- 77, at 77. 3 According to the Financial Times, the total distance US shoppers drive every year to “outlet” shopping malls would allegedly amount to 44,000 trips to the moon. Cf. Jonathan Birchall, “Less is moreish”, Financial Times, August 8-9, 2009. On today’s low-cost shopping culture, cf. Ellen Ruppell Shell, Cheap: The High Cost of Discount Culture (New York: Penguin Press USA, 2009). 3 generalizations are usually made to strike a comparison. Hence, in French culture (in a non- COVID environment), people are apt to spend a considerable amount of time kissing colleagues – male or female – at work (a slight touching of cheeks and an air kiss, done once on each cheek). The French do not kiss to demonstrate their affinity and special bond towards others. They kiss to create closeness with someone they are happy to know. The English and Americans, on the other hand, shy away from such physical contact, making them seem uptight, awkward or unfriendly (or all three). For them, workplace kissing is bad partly because they dislike having their space invaded by relative strangers, but also because they are at a loss as to who kisses and when. Is it ever OK to kiss a boss? Does one only kiss colleagues who are friends? And do you do it every day? And which cheek do you go for first? And one cheek or two? The American philosopher, Alan Bloom, gives two different uses of the word “culture” that, while distinct, are linked. Alan Bloom, The Closing of the American Mind (New York: Simon & Schuster, 1987), pp. 187-88 “First, culture is almost identical to people or nation, as in French culture, German culture, Iranian culture, etc. Second, culture refers to art, music, literature, educational television, certain kinds of movies – in short, everything that is uplifting and edifying, as opposed to commerce. The link is that culture is what makes possible, on a high level, the rich social life that constitutes a people, their customs, styles, tastes, festivals, rituals, gods – all that binds individuals into a group with roots, a community in which they think and will generally, with the people a moral unity, and the individual united within himself. A culture is a work of art, of which the fine arts are the sublime expression. From this point of view, liberal democracies look like disorderly markets to which individuals bring their produce in the morning and from which they return in the evening to enjoy privately what they have purchased with the proceeds of their sales. In culture, on the other hand, the individuals are formed by the collectivity as are the members of the chorus of a Greek drama. A Charles de Gaulle or, for that matter, an Alexander Solzhenitsyn sees the United States as a mere aggregate of individuals, a dumping ground for the refuse from other places, devoted to consuming; in short, no culture. Culture as art is the peak expression of man’s creativity, his capacity to break out of nature’s narrow bonds, and hence out of the degrading interpretation of man in modern natural and political science. Culture as a form of community is the fabric of relations in which the self finds its diverse and elaborate expression. It is the house of the self, but also its product. It is profounder than the modern state, which 4 The “compensation culture” refers to the formidable number of judicial claims that exist in the United State. See, for instance, a lawsuit brought in 2002 by two New York girls, Ashley Perlman, aged fourteen, and Jazlyn Bradley, aged nineteen, against the McDonalds Corporation. Fears of this “compensation culture” gaining the U.K. were recently brushed aside in a report adopted by the Better Regulation Task Force (BRTF)(in May 2004) pointing out that the U.K. was not going down the same litigious route. David Lammy, Civil Justice Minister and sponsor Minister for the report said: “The Government welcomes the report’s key findings that the ‘compensation culture’ is a myth, but is nevertheless a damaging myth that needs to be tackled. What concerns me is that this perception is being fueled by the ‘have a go culture’. Our aim must be to discourage frivolous claims but to ensure that those with a genuine claim can access their rights”. For extended discussion, cf. Andrew Towler, “Wary response from lawyers to compensation proposals”, Solicitors Journal, May 28, 2004. 4 deals only with man’s bodily needs and tends to degenerate into mere economy. Such a state is not a forum in which man can act without deforming himself. This is why in the better circles it always seems in poor taste to speak of love of country, while devotion to Western, or even American culture is perfectly respectable. Culture restores ‘the unity in art and life’ of the ancient polis”. On the basis of Alan Bloom’s definition, culture appears highly respectable, positive, “uplifting and edifying” (like Guinness, “culture is good for you”…). One must not be too naive in these matters however... Before coming to the strengths and weaknesses of culture (infra), let us first try to apprehend the very concept of culture. Culture goes from the very ordinary to the fundamental. By way of illustrating something ordinary, it may be shopping at Abercrombie & Fitch or eating fries on a street corner. By way of illustrating something fundamental, one could refer to the concept of “plea- bargaining” by which a prosecutor and the accused negotiate a mutually satisfactory disposition of a case (enabling the accused to avoid a harsh sentence: the outcome of 90-95% of criminal cases in the USA)1. what does “plea-bargaining” means? EX: “I confess that I’m guilty and I don’t want to have a life-sentence”. The accused may be charged with a less severe crime and thus receive a less severe punishment. EX: Paul Manafort was accused of tax fraud and money laundering. He plea-bargained. Trade-off. Fundamental in US culture. I don't get it There exist four reasons that make it difficult to approach the culture of the English-speaking world: A) culture change, B) the viewer’s subjective approach to culture, C) the ubiquity of culture, and D) the existence of the English-speaking world itself. A. Culture Change Culture changes in time and space, by reason of bottom-up considerations (new behavior and sub-culture alignment) and top-down considerations (leadership alignment). In criminal law, cultural factors can influence a criminal case from the decision to arrest and prosecute through the sentencing phase. One clear example of culture change that comes to mind is the gun 5 culture of the United States. 5 Alison Dundes Renteln, “Raising Cultural Defenses”, in Linda Friedman Ramirez (Ed.) Cultural Issues in Criminal Defense (New York: Juris Publishing Inc., 2010), 769-813, at 770. For extended discussion, cf. Andrew M. Kanter, “The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense”, 45 S. Cal. Interdisc. L.J. 411 (1995); Anh T. Lam, “Culture as a Defense: Preventing Judicial Bias Against Asians and Pacific Islanders” 1 Asian Am. Pac. Islands L.J. 49 (1993); Paul J. Magnarella, “Justice in a Culturally Pluralistic Society: The Cultural Defense on Trial”, 19 J. Ethnic Stud. 65 (1991); Note, “The Cultural defense in the Criminal Law”, 99 Harv. L. Rev. 1293 (1986); Kent Greenawalt, “The Cultural Defense: reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act”, 6 Ohio St. J. Crim. L., 229-321 (2008); Elliot M. Held & Reid Griffith Fontaine, “On the Boundaries of Culture as an Affirmative Defense”, 51 Ariz. L. Rev. 237-251 (2009); Alison Renteln, “Corporal Punishment and the Cultural Defense”, 73 Law and Contemporary Problems, 5 The United States is infatuated with firearms and violence, a feature that pervades popular culture, from TV shows (Gunsmoke, Jack Bauer in 24), movies (Sam Peckinpah’s Straw Dogs, Quentin Tarrentino’s Pulp Fiction), and passing through gangsta rap. Tragic shootings regularly stun the nation into shock and disbelief – Columbine (1999), Virginia Tech (2007), Sandy Hook (2012), Charleston (2015). Besides the headline-grabbing massacres, the nation’s death rate from firearm suicides , homicides, and accidents is double or treble that of other 6 developed countries. The United States has the biggest civilian arsenal in the world (the second highest is Yemen), with a national gunstock exceeding 280 million (90 guns for every 100 people). Statistics put at 45% the number of households that possess a gun. Sales of 7 8 firearms actually skyrocketed after the 2008 and 2012 elections of President Obama, in large part out of fear that the President would enact tighter controls on gun sales (and most notably by reinstating an assaults weapon ban similar to the one adopted in 1994 after the election of President Bill Clinton). Ironically, gun purchases soar – rather than diminish – after mass 9 shootings since potential gun buyers decide to act before the law changes to stop them. Several reasons lie behind U.S. gun culture. Remnant of the revolutionary era and the “frontier spirit” of the 19 century. th Loopholes in American law (e.g. background-checks are curtailed by buying weapons at fairs). Symbol of power and masculinity. Influence of lobbies and gun manufactures who give millions of dollars to political candidates in their election campaign (most notably, the NRA). The Second Amendment to the U.S. Constitution states (in one sentence): Spring 2010; Alison Dundes Renteln and Rene Valladares, “The Importance of Culture for the Justice System”, 92 Judicature, 193-201 (2009); Alison Dundes Renteln, “When Westerners Run Afoul of the law in Other Countries”, 92 Judicature, 238-242 (2009); Multicultural Jurisprudence: Comparative perspectives on the Cultural defense (Alison Dundes Renteln and Marie-Claire Foblets eds. 2009). 6 Many people relate the American gun culture to homicides. In fact, 60 to 80% of gun deaths are suicides (depending on the state). According to Paul Neustadt, a psychiatrist at the University of John Hopkins (School of Public Health: “A firearm ends in death in a suicide attempt about 85 percent of the time, compared to something like poisoning, which only ends in death about 2 percent of the time”, quoted in Brian Mann, “Sharp Increase in Gun Suicides Signals Growing Public Health Crisis”, NPR, July 26, 2018. 7 By way of comparison, Belgium has approximately 450,000 licensed guns, in the hands of 113,000 households (leaving more than 300,000 guns unaccounted for…). Carrying guns is generally banned in Belgium, except for duly authorized holders, numbering 1,149 people (bodyguards, staff of cash-transport firms, …). See Le Soir, June 26, 2015. 8 David Cole, “Our Romance With Guns”, The New York Review of Books, September 27, 2012, p. 48. Jill Lepore puts the figure at one in three households: see Jill Lepore, “Battleground America”, The New Yorker, April 30, 2012, p. 39. 9 Speaking in December 2012, Ronald Kolka, the chief financial officer of the Freedom Group (a leading American manufacturer of guns) reported that President Obama’s re-election had “a very, very positive effect on our business. Subsequent to the re-election, retail sales of ammo and firearms actually increased at a quicker pace than it has throughout the year”. The two gun manufacturers listed on the stock market – Smith & Wesson and Sturm Ruger – reported sales growth of 20% and 48% respectively. See Ed Crooks, “Manufacturers play down impact of tighter controls”, Financial Times, December 18, 2012. 6 “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”. Many Americans only read the second part of the sentence, inferring an individual constitutional right to keep and bear arms. Back in 1787, when the Second Amendment was drafted, the Framers most likely had in mind a collective right. The thirteen original states sought to protect a collective right to bear arms inasmuch as Congress might seek to take their arms away. Put differently, the states did not want to lose the freedom/sovereignty they had just obtained from the British. There is actually no indication that the framers intended to entire an individual right of self-defense in the C°. Gun rights advocates argue on the one hand that the verb “keep” implies an individual right. On the other, they insist on reading only the second half of the clause, without referring to the Amendment’s first clause that deals with a well-regulated militia. For most of American history, the prevailing judicial view was that the Second Amendment guaranteed the right to bear arms only in the context of maintaining a well-regulated – that is state-sponsored – militia. This was understood in the context of conducting military activities. Set at the heart of the conflicting views between Federalists and Anti-Federalists when the Constitution was drafted, Anti-Federalists feared that a new central government would establish a “standing army” of professional soldiers and would disarm the thirteen state militias that were revered as bulwarks against tyranny. Widely attributed to James Madison who needed to offer 10 assurance to Anti-Federalists, there is very little to be gained on the meaning of the Second Amendment in his notes from the Constitutional Convention. Nor can we gather much information from the records of the ratification debates in the States. At best, we know that the original version, passed by the U.S. House of Representatives as it marked up the Bill of Rights, included a provision on conscientious objectors. The original Amendment thus read as follows: “A well-regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person”.11 Erwin N. Griswold (1904-1994), a former United States Solicitor General and dean of Harvard Law School, adamantly believed the Second Amendment – in its current formulation – was unique in that it was the only amendment in the Bill of Rights that spelled out its purpose in its text. For Professor Griswold, “This was explicitly recognized by the Supreme Court in its 1939 opinion in United States v. Miller, where it said that the ‘obvious purpose’ of the Amendment was to ‘assure the continuation and render possible the effectiveness’ of State militias, and that it ‘must be interpreted and applied with that end in view”. Following the Miller decision, delivered by a unanimous Court, the Supreme Court repeatedly affirmed that the Second Amendment protected only State militias, not private ownership of guns. In 1989, it held that legislative restrictions on the use of firearms did not “trench upon any 10 Conceived in a spirit of uttermost civic duty, the State militias, as they originally existed, were made up of white males – aged between 16 and 60 - who were compelled to enroll in the militia and bring with them their musket or other military weapon. State militias were also at the heart of Article VI of the Articles of Confederation, drafted in 1776 and ratified in 1781: “every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage”. 11 Michael Waldman, “How the NRA Rewrote the Second Amendment”, Politico, May 19, 2014, Internet available, at http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment- 106856.html#.VaEaCYvayWc (visited September 1, 2020). 7 constitutionally protected liberties”. Speaking extra-judicially in 1991, former Chief Justice Warren Burger, a Republic appointed by President Nixon, said that the idea that Second Amendment protected an individual right to bear arms was “one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime”. During most of the 20 century, the nation’s courts uniformly 12 th rejected an expansive interpretation of the Second Amendment and virtually no federal courts invalidated laws regulating the private ownership of arms on Second Amendment grounds. Ironically, throughout most of this time, the NRA shied away from pressing courts to adopt its expansive views on the Second Amendment. It did so, for the most part, out of tactical reasons, to avoid a negative final opinion on the matter. Its long-term strategy was to wait for a gradual shift in the courts’ approach to these problems, much as there was a shift in civil rights over the decades. Meanwhile, the NRA played on other grounds. With respect to laws 13 that imposed waiting periods for handgun purchases, the NRA brought challenges in court based on the fact that such requirements imposed an undue burden on local officials to enforce a federal statute. Slowly, the idea of owning and carrying a gun began to be considered as a fundamental American freedom and an act of citizenship, if not an element in what it means to be American. Existing gun control legislation would soon either be diluted, 14 defeated, or simply allowed to expire (such as President Clinton’s ban on assault weapons that elapsed in 2004). In its place, a vast number of States started adopting “Stand Your Ground” legislation, meaning that untrained and unlicensed people may use deadly force when they feel threatened, rather than retreat. The entire situation changed dramatically when, in 15 District of Columbia v. Heller, the Supreme Court – in a 5-4 decision – struck down a Washington D.C. gun control law, and for the first time announced that the Second Amendment to the U.S. Constitution protected an individual right to bear arms. Indeed, reversing decades of precedent, Justice Scalia said an individual’s right to bear arms was supported by the “historical narrative” both before and after the Second Amendment was 12 Quoted in David Cole, “Our Romance With Guns”, The New York Review of Books, September 27, 2012, p. 48. 13 Mark Tushnet of Harvard Law School, attributes the late emergence of the gun rights debate to the “rights revolution”, the pursuit of rights, in particular civil rights, through the courts. 14 The NRA’s views in these matters were strongly supported by scholarship, much of it funded by the NRA: “According to Carl Bogus, at least sixteen of the twenty-seven law-review articles published between 1970 and 1989 that were favorable to the N.R.A.’s interpretation of the Second Amendment were ‘written by lawyers who had been directly employed by or represented the N.R.A. or other gun- rights organizations’”, in Jill Lepore, “Battleground America”, The New Yorker, April 23, 2013, p. 39, at 46. 15 The existence of “stand your ground” gun laws law was made notorious after the killing of Trayvon Martin – an unarmed black teenager – in Florida in February 2012. The young teenager – wearing a hoodie – was walking home from a shop with a can of iced tea and a bag of candy. This particular shooting took place in a so-called “gated community”, known for intrusive security systems. The killer of Trayvon Martin – George Zimmerman – was a volunteer-member of a neighborhood watch group that patrolled quasi-privatized streets with concealed guns. Mr. Zimmerman claimed that he acted in self- defense in killing Mr. Martin. He was not arrested or charged because of Florida’s “stand your ground” law. The origin of “stand your ground laws” is to be found in the United States Supreme Court case Beard v. United States, 158 U.S. 550 (1895). According to Justice Harlan, “The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner and with a deadly weapon, and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon in such way and with such force as, under all the circumstances, he at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life or to protect himself from great bodily injury”, at 158 U.S. 564. 8 adopted, concluding, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia”. 16 Besides ruling that the Second Amendment secured for individuals the right to keep and bear arms, including handguns, for the purpose of self-defense, the Supreme Court added an important qualification, namely that the right to keep and bear arms was not unlimited. Indeed, the right did not preclude the regulation of gun owners and Justice Antonin Scalia made this abundantly clear by stating that State and Federal government could bar felons from possessing guns, could prohibit the presence of firearms in places such as courthouses or school zone areas, could ban dangerous and unusual firearms and, in certain instances, ban possession of guns in public. Some inferred from Scalia’s list of permitted regulations that 17 far from being a decisive victory for gun rights advocates, Heller should in fact be viewed as something of a compromise. Dennis Henigan, then legal director of the Brady Center’s Legal Action Project, confessed Heller was “a pleasant surprise”, adding that it “encompassed our entire agenda. It basically made it very easy for lower courts without a whole lot of difficulty to find that whatever gun law is at issue in the particular case in front of them … had been blessed” by the Supreme Court. Coming back to Washington D.C., after Heller, the D.C. Circuit upheld the District’s assault weapons and high-capacity magazine bans as constitutional, and a U.S. District judge similarly upheld the District’s one-handgun-a-month limitation. 18 The day after the Heller decision was delivered, the case McDonald v. Chicago began. The case of Chicago is particular. Despite having the highest murder rate of any US city (506 murders in 2012), Chicago long had very strict gun laws: there were no gun shops, private citizens could not carry guns in public, and handguns were generally banned for almost 30 years. Having said as much, the city was afflicted with gang violence and guns pouring in from neighboring States with lax regulations (Indiana). At the end of the day, the Supreme Court, in McDonald v. Chicago (2010), confirmed its ruling in Heller, for all 50 states. The polarization between gun-control advocates and. gun-rights advocates, if anything, has increased over time in the United States. The former (gun-control advocates) continue to support fewer guns, if not a total ban, whereas the latter (gun-rights advocates) continue to defend gun rights as a matter of constitutional principle. As an Illinois senator, Barack Obama 16 In addition to serving as Justice on the Supreme Court bench, Antonin Scalia is a duck-hunting friend of Dick Cheney who, while Vice-President, accidentally shot an acquaintance in the face while quail hunting. 17 Note that Justice Scalia pointed to no historic evidence to support these regulations, leading scholars to mock his “faux originalism”: see Richard Posner. Others simply contended that Scalia did not use originalism at all, but a disguised and incomplete form of the Breyer interest-balancing approach that Scalia disdainfully dismissed”. 18 See ruling of the U.S. District Court for the District of Columbia of May 15, 2014. See http://www.bradycampaign.org/inthenews/us-district-court-upholds-dc-firearms-registration-laws-in- heller-v-dc (visited September 1, 2020). Notwithstanding, in Palmer v. District of Columbia (July 24, 2014), the same United States District Court for the District of Columbia held that the District of Columbia’s carrying a pistol statute was facially unconstitutional. The judge granted the plaintiffs’ request for an injunction. The judge enjoined the city from enforcing provisions of the D.C. Code that imposed an absolute bar on carrying pistol in the District of Columbia. The Court also held that the Court could not categorically bar out of state residents from possessing a firearm in the District of Columbia solely on the basis that they were out of state residents. For the text of the Memorandum-Decision and Order in Palmer v. District of Columbia, see https://scholar.google.fr/scholar_case?case=10770991382526452056&hl=en&as_sdt=6&as_vis=1&oi=sc holarr&sa=X&ei=XkuhVaqjNsu2UZrsn6AP&ved=0CCAQgAMoADAA (visited July 11, 2015). 9 voiced support for the Second Amendment but argued that states and cities were free to limit its scope. In the run up to the presidency, he associated gun ownership with “bitter” votes in 19 economically depressed areas, thereby drawing ire from gun enthusiasts. As President, 20 Obama’s position was one of caution. In the wake of the 2012 shootings at Sandy Hook elementary school, he reaffirmed his belief that the Constitution’s Second Amendment gave Americans the right to bear arms, and added: “The vast majority of gun owners in America are responsible”. Following the hate crime of Charleston, South Carolina in June 2015 , 21 22 President Obama, speaking from the White House with Vice-President Joe Biden at his side, said: “At some point we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries … with this kind of frequency”. Speaking to Jon Sopel of the BBC, he added the issue of guns was a major frustration during his presidency. It constituted “an area where if you ask me where has been the one area where I feel that I’ve been most frustrated and most stymied it is the fact that the United States of America is the one advanced nation on earth in which we do not have sufficient common- sense, gun-safety laws. Even in the face of repeated mass killings”. 23 In retrospect, most massacres in the United States have failed to persuade Congress or a significant number of State legislatures to pass tougher gun control. Following the Sandy 24 25 Hook school massacre of December 2012, the U.S. Senate came close to enacting gun control legislation but it failed. The legislation would have established federal background checks on all gun purchases, effectively closing the “gun show loophole and aiming at online sales. It 26 would also have set up requirements on federal agencies to make data available to the federal background check system and encouraged States to share data with this system. Furthermore, the bill would have reinstated the assault weapons ban that lapsed under George W. Bush, and it would have outlawed high-capacity magazines. The bill – sponsored by Pat Toomey, a Pennsylvania Republican, and Joe Manchin, a West Virginia Democrat – had the backing of a 19 From 1994 to 2002, Obama served on the board of the Joyce Foundation that funds pro-gun-control advocacy and research. See Jill Lepore, “Battleground America”, The New Yorker, April 23, 2012, p. 39, at 46. 20 Andrew Ward, “McCain hails ruling on gun controls”, Financial Times, June 27, 2008. 21 Anna Fifield, “Obama forms task force to tackle gun violence”, Financial Times, December 20, 2012. 22 In June 2015, a white gunman – 21-year-old Dylann Storm Roof – attended a bible study session at the historic Emmanuel African Methodist Episcopal Church in Charleston, South Carolina, and then killed nine people, including the pastor of the church. 23 Transcript of BBC interview with President Barack Obama, BBC website at: http://www.bbc.com/news/world-us-canada-33646542 (visited September 1, 2020) 24 In contrast with Britain: following the massacre of Dunblane (1996) where a man – who legally owned a small arsenal of guns – shot dead 16 young children and their teacher in less than three minutes, the horrific carnage emerged as an opportunity for radical change, resulting in new legislation that banned the private ownership of handguns in Britain. Similarly, in 1996, John Howard – Australia’s conservative prime minister – banned assault rifles and tightened gun ownership licensing in the wake of a massacre in which 35 people were killed. According to reports, gun deaths since halved in Australia: see Anna Fifield, “Gun lobby leader defies critics”, Financial Times, December 24, 2012. Gun-control legislation also tightened in Quebec after a school shooting took the lives of fourteen women in 1989. 25 It should nevertheless be noted that since Sandy Hook, six States have passed laws requiring background checks on all gun purchases. 26 Some States have legislation requiring background checks (e.g. Illinois) but they are of limited use if criminals can go elsewhere. According to Mayors Against Illegal Guns, in 2009, just 10 States supplied half the guns recovered at crime scenes elsewhere: see Richard Daley, “America must side with its young, not its gunmakers”, Financial Times, February 27, 2013. The disqualifying factors referred to in the federal background check included a felony conviction, having a misdemeanor conviction for domestic violence, being a fugitive, or anyone “adjudicated mentally defective” (a restrictive notion of mental illness since it did not rule out from buying guns people who willingly had mental treatment or had lower level mental health problems). 10 large majority of US public opinion but, sadly, the clout of the NRA proved stronger. The 27 strength of opposition from the NRA is reflected in the fact that most political contenders offer utmost respect – if not pay homage – to the association as they campaign for the White House. Jeb Bush and many other Republican contenders spoke at the NRA’s annual convention in April 2015. The gun problem is embedded in American culture on many different levels. Besides the issues just evoked, another aspect consists in underlining that someone has to pay the bill for gun violence (increased medical costs, increased policing) but that it is extremely difficult to bring gun manufactures to justice. The “Protection of Lawful Commerce in Arms Act” (PLCAA), signed into law by President George W. Bush, basically makes it impossible to sue or hold manufactures accountable. This, in turn, illustrates another problem: the U.S. “culture 2 of complaint”. Other examples concern tobacco manufacturers who long conspired to defraud US consumers by hiding the health risks of smoking, or fast-food chains (and the relationship between “junk food” and obesity), or today’s opioid crisis (painkiller-addiction). Polarization: culture, abortion and death penalty create culture wars The democratic process is taken over by the legal process → lawsuits make policy 3 B. Culture and the Viewer Our understanding of culture depends, to a large degree, on our upbringing and on our subjective interests. To one person, English culture may bring up lofty ideas of Kenneth Clark devising on Civilisation under the vaulted ceilings of the Bodleian Library at Oxford University. To another, it may stir up the comic mimics of Rowan Atkinson or the football passes of David Beckham. To one student, American culture may bring up the minimalist 28 paintings of Mark Rothko or the detective novels of Chester Himes. To another, it may stir up memories of Adam Sandler or the more cerebral acting of Lee Strasberg (co-founder of the Actor’s Studio and co-inventor of the “Method”). To press the point, we may focus on eighteenth-century England, contrasting William Hogarth and Thomas Gainsborough. The cultural landscape conjured up by William Hogarth (1697-1764), a “man of the people”, is dominated by public executions, gin-induced squalor, 27 The bill came within 5 votes of being adopted: while 55 senators supported the measure, they fell short of the 60 needed to overcome opposition. The co-sponsor of the bill, Senator Joe Manchin, a Democrat from West Virginia, significantly shifted position in this matter. Whilst the NRA gave him an “A rating” – marking him out to be a strong defender of gun rights – he seemingly came to favor gun control in the wake of the December 2012 shooting at Sandy Hook elementary school. 28 Football, far from being associated with low mob passions, was greatly admired by prominent intellectuals. Albert Camus was goalkeeper for the football team of the University of Algiers (Racing Universitaire Algérois - RUA) and later allegedly said, “After many years during which I saw many things, what I know most surely about morality and the duty of man I owe to sport and learned it in the RUA”. This statement should not be inflated to express Camus’s general philosophy. It has more to do with an ethic of sticking up for your friends and of valuing fair-play. The Russian-born French artist Nicolas de Staël (1914-1955) devoted no less than 25 paintings to football (see most notably his painting, “Parc des princes”). According to Simon Kuper, “The day that England won its only World Cup, beating West Germany 4-2 in the final at Wembley , remains Britain’s biggest cultural event. It was watched on television by 32.3m Britons, a touch more than saw Princess Diana’s funeral. That makes Geoff Hurst’s last goal probably the most shared moment in British history”, in “Memories of 1966 and all that”, Financial Times, November 4-5, 2006, 11

A. Culture change -3-11.pdf

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