Balancing, the formal and the substantive

1. Law's proprium

There is overwhelming evidence for the proposition that actors in all Western legal systems are faced with some variant of a basic dilemma of managing these systems' relative autonomy.^[73] This relative autonomy of the juridical sphere constitutes not only a valid descriptive account of Western law, but also crucially, a normative ideal intimately connected to the idea of legitimacy.

In the Western tradition, law, in order to qualify as law, has to be some­what autonomous, somewhat closed-off from other sources of value, such as morality, religion, ideology, social relations or economics. In the vocabulary made famous by Max Weber, this means that law, by defini­tion, as a normative ideal, and by experience, is and has to be somewhat forma I.^[74] But at the same time, law, in order to be acceptable as law and

to have any hope of functioning at least somewhat effectively in mod­ern societies, cannot be fully autonomous or closed-off in this sense.^[75] At stake, therefore, is not merely the one-sided pursuit of law's auton­omy, but rather the discursive management of the necessary co-exist­ence of the formal and substantive dimensions of law. This, as Michelle Everson and Julia Eisner put it, is law's ‘proprium ':^[76] ‘Law', they write, ‘is forever caught on the horns of a dilemma. Law is not of this world, but is, instead, a transcendental force of self-referential reasoning. At the same time, however, law's underlying claim to dispense of social, as well as legal, legitimacy determines that it must engage with a world outside law, in order to bring its abstract formulations into line with an actual realm of social and political contestation'.^[77] The intimate connection between these two conflicting goals and the ideal of legitimacy is reflected in a range of tropes common to German and US law, notably in the image of purely individualized judgment that Max Weber and Roscoe Pound shared in their ‘Khadi’ judge, and the pictures of a sterile cult of logic decried by Otto von Gierke's ‘lifeless abstractions' and Pound's ‘mechan­ical jurisprudence'.^[78]

The centrality of this dilemma was acknowledged particularly clearly in legal theoretical writing of the late 1950s and early 1960s: the period during which German and US courts first began to refer to balancing.^[79] Gerhard Leibholz, for example, who was a Justice of the Bundesverfassungsgericht from its foundation in 1951 until his retirement in 1971, wrote that the task of constitutional lawyers was to ‘reconcile rules of law and constitutional reality in such a way that the existing dialectical conflict between rule and reality can be removed as far as possible'.^[80] Other German authors noted a permanent struggle to mediate between a ‘Gerechtigkeitspostulat’ and a ‘Rechtssicherheitspostulat’ - the commands of individual justice and of legal certainty.^[81] In the US, meanwhile, Henry Hart, arguably the lead­ing commentator on the work of the Supreme Court during this period, wrote in 1959 of the imperative of keeping the body of constitutional law simultaneously ‘rationally consistent with itself' and ‘rationally related to the purposes which the social order exists to serve'.^[82]

2.

This problem of how to manage law's relative formality, then, in all its dif­ferent manifestations, pervades legal discourse in Western legal systems. Its status as a common problem to be solved according to local standards and using local means, makes it a useful point of reference for the com­parative analysis of legal discourse. Two leading examples of studies tak­ing just such an approach are Summers and Atiyah's Form and Substance in Anglo-American Law and Mitchel Lasser's account of judicial reason­ing at the French Cour de cassation, the Court of Justice of the European Union and the US Supreme Court.^[83]

Based on wide ranging observations of familiar features of English and US law, Summers and Atiyah's principal conclusion is that ‘the mix of the formal and the substantive in the two systems is very different'. The English legal system, in their view, is highly ‘formal', while the American is highly ‘substantive'.^[84] This contrast, they argue, ‘reflects a deep diffe­rence in legal style, legal culture, and more generally, the visions of law which prevail in the two countries'.^[85]

Where Summers and Atiyah's main interest is in qualifying legal sys­tems as more or less formal, Lasser's path breaking studies tackle two further related issues. First, Lasser looks at differences in local under­standings of what counts as substantive or formal reasoning in the first place. It is not at all clear, Lasser argues, that contingent, potentially paro­chial, terms such as ‘formalism', ‘nondeductive argument' or ‘policy' will have the same meaning in different settings.^[86] Finding out what exactly the relevant audience does understand by formality and its opposites, and why they think these qualifications matter, should therefore allow for ‘a thicker description of the foreign legal system'. ⁶⁹ Lasser's second main pro­ject, then, is to look at the ways in which the formal and the substantive are combined, integrated or juxtaposed in each system.

That is quite a claim. But this line of inquiry does hold enormous poten­tial for a comparative study of the discourse of balancing. In particular, it opens up the possibility that the same language may, in different settings, be the manifestation of very different kinds of encounters between legal formality and its opposites. Those different modes of interaction, in turn, could be emblematic for the system concerned, in ways similar to those suggested by Lasser.

Part of the argument this book seeks to develop runs along these lines. While American balancing discourse of the 1950s and 1960s was charac­terized by pervasive antinomies, balancing in the German constitutional landscape of the time was the principal embodiment one of modern con­stitutionalism's most significant and successful efforts at overcoming these same basic oppositions. American constitutional jurisprudence continuously draws fundamental distinctions between pragmatic action and reasoned deliberation, between policy and principle and between the substantive and the formal - always relegating balancing firmly to one side of these dichotomies.

In Chapter 5, this argument will be developed by way of a comparative analysis of paradigmatic German and US conceptions of the formal ver­sus substantive opposition. This opposition can be specified along four dimensions: those of the formal, the substantive, of the nature of their interaction and of the attitudes adopted towards their co-existence.^[90] The first two of these concern the character of, first, ‘the formal', and second ‘the substantive'. Both elements can be shown to be contingent in vari­ous ways. Chapter 5 examines this contingency, analysing among other things the ways local legal actors typically describe legal formality and its opposites. Would it matter, for example, if in one setting formality were typically equated with rules and ‘ruleness', whereas in another context the typical references are the ideas of ‘system' and conceptual refine­ment? Broader associations could also be highly revealing, as where in one system formality is habitually related to a particular canonical court decision, or to a particular era in constitutional law, while such associ­ations might be absent in other systems. The crucial point is that these associations may tell the comparative lawyer at least as much about local understandings of legal formality and its opposites as they might about the decisions or eras concerned.

The third and fourth dimensions examine the character ascribed to the interaction between the formal and the substantive in law, and the nature of the attitudes typically adopted towards these encounters. Do the for­mal and the substantive, for example, relate to each other in a state of ‘unsynthesized co-existence' - a state of permanent conflict and paradox? Or do local legal actors believe some form of synthesis could be possi­ble? Is the conflict between rule and reality inescapable, or can it, in the words of Justice Leibholz quoted earlier, be to some extent ‘removed '? And finally, is this dilemma of form and substance something lawyers tend to approach sceptically and with trepidation, or embrace with ambition, as a societal challenge only they can really handle?

E.