Balancing and conceptual jurisprudence

The ambition for this chapter was to uncover different original under­standings not only for balancing itself, but also for classical orthodoxy - for ‘conceptual jurisprudence' - and therefore for legal formality.

Here is one way of showing how that question arises. The original American meaning of legal formality as categorization, with its emphasis on the preservation of individual liberty vis-a-vis governmental regula­tion, will, in Chapter 4, be shown to lie at the foundations of a highly visible and peculiar feature of contemporary American constitutional law. This is the recurrence of invocations of ‘formality' and ‘formalism' that are both explicit and positive. It is important to note that this favour­able view of legal formality is decidedly an anti-balancing perspective. American jurisprudence frequently demonstrates a pervasive fear of balancing away constitutional rights protection. This balancing-angst is visible in repeated explicit efforts to cast rights as ‘absolutes', to protect ‘inviolable cores' of rights, or to create ‘bright-line rules' in areas as diverse as freedom of expression or search and seizure - moves discussed in more detail in Chapter 4. These efforts are often propagated by self-styled ‘neo­Formalists'. They are all presented explicitly as part of a broader endeav­our of ‘reclaiming the methodology of late nineteenth-century legal thought' as a way to get out of ‘the conundrums of balancing', in Richard Pildes' stark phrase, cited earlier. But that project provides a striking contrast with parallel efforts in Germany to develop an understanding of balancing as part of ‘the great analytical tradition of conceptual jur­isprudence'.^[283] Balancing versus nineteenth-century legal thought, then, and balancing as nineteenth-century legal thought. Neither of these dia­metrically opposing labels, of course, captures all that is salient about American and German legal thinking in this field. But they are evocative reminders of the reality of the challenge set out in the Introduction - the challenge of reconciling a ‘turn to balancing' and a ‘turn to legalism' in contemporary constitutional jurisprudence. And they are useful as guid­ing images, to keep in mind as the next instalment of balancing's histories gets under way.