Balancing’s German local meaning
Given the language and images discussed in this chapter, and using von Gierke's wonderfully untranslatable term, what can we say so far about the ‘deutschrechtliche’ meaning of the discourse of balancing during the period described here? Three observations may serve by way of interim conclusion.
A first point to note is that the discourse of balancing in German constitutional rights jurisprudence of the time clearly was much broader than the mere occurrence of terms like ‘Guterabwdgung’ and ‘Interessenabwdgung’. These terms, I have argued, should be seen as lying at the heart of an expansive family of related conceptual vocabulary, running through Weimar-era constitutional legal thought, case law, contemporary academic writing and constitutional rights doctrine.[504] In many ways, balancing lies at the heart of this collection of terms and concepts, functioning as a bridge between different historical eras (of the Weimar and the Bonn Republic), different understandings of the nature of constitutional interpretation (from ‘Geisteswissenschaftlich’ to strictly ‘juristisch’), different understandings of the role of courts, and of the Bundesverfassungsgericht in particular (from highly particularized interest balancing to a more abstract weighing of values) and different areas of law (from private lawstyle interest balancing to the typically constitutional accommodation of values).
This leads to a second observation on the role and meaning of the discourse of balancing, when conceived in this broad sense. In many of its guises, one of the central functions of this discourse was to overcome deep-seated antinomies in legal and social thought. In the discourse of balancing, basic rights are ‘equally constitutive’ for both individuals and society. Rights encompass their own limitations. They are both programmatic statements and legal principles.
The abstract meaning of constitutional clauses is identical to their ‘actualized’ meaning in concrete cases. Value-balancing goes hand in hand with interest-balancing. The autonomy of private law co-exists with a constitutional order that claims to be comprehensive. Concern for judicial deference co-exists with the desire for intensive scrutiny. And so on. And even though these are all quite different projects, the language of Abwagung’, ‘Wechselwirkung‘dialectical understanding' or ‘Ausgleich ’ and similar terms, is in each case central to these efforts at synthesis or accommodation.It is this notion of synthesis that leads to a final observation. While the ideas of overcoming antinomies, or their synthesis or accommodation, capture much of what is significant in the German discourse of balancing, it would be far less accurate to understand this discourse in terms of pragmatic compromise.[505] For one, German judicial decisions and academic commentary regard this synthesizing project as very much a ‘juristic’ project, to be undertaken according to strict standards of scholarly legal discipline. The shadow of classical legal doctrine and orthodox rules of interpretation is always present. What is striking also, from an outsider’s perspective, is the extent to which achieving accommodation between ostensibly conflicting values and perspectives often appears in German constitutional legal theory and doctrine of the time as something that can and must be willed. The Bundesverfassungsgericht wills there to be no conflict between individualized interest balancing and abstract weighing of values, or between deferential review and intense conformity with constitutional norms. The Basic Law itself, in the anthromorphism that so clearly characterizes German constitutional jurisprudence of this period, wills there to be no conflict between more social and more individual dimensions of societal life, or between the State and the individual.
A theme to which Chapter 5 returns is the fact that this ‘willing’ often seems to require some suspension of disbelief by outside observers - and perhaps by German participants themselves.
Or, to put the point from another angle: what seems to be at work is some degree of pervasive ‘faith’ in legal doctrine, and in law more broadly. Without such an understanding it becomes very difficult to account for the phenomenal success of the Basic Law and its interpretation by the Bundesverfassungsgericht, including notably the success of its balancing discourse. Peter Lerche, in his path-breaking 1961 book on proportionality, spoke of the ‘unbewieseneVorstellung’ (‘the unproven conception') of the constitutional value system, as a force sustaining the operation of ‘konkurrenzlosende Normen’ (‘competition-overcoming norms’) in German constitutional law.[506] That image neatly fits the discourse of balancing. That discourse is arguably the most prominent manifestation of a deep tradition of synthesis in German legal thought, whether in tying together potentially conflicting rights, bridging potentially conflicting understandings of the constitutional order as a whole or overcoming potential clashes between that order and social reality. And this discourse is able to fulfil this synthesizing function because of some form of faith in its unproven, but willed capacity to succeed.
The remainder of this book builds on these observations. In the next chapter, I explore a radically different meaning for the discourse of balancing in mid-century US constitutional jurisprudence. In the polemical terms that often seem to characterize that discourse, ‘synthesis’ will make way for conflict, compromise and paradox, and ‘faith’ for a much less stable mix of deep conviction and radical scepticism. Chapter 5, finally, relates these two different meanings to different understandings of legal formality and its opposites, using that conceptual vocabulary to frame two contrasting paradigms of balancing.