Contemporary critiques of the Luth line on balancing
1. Introduction
While Luth proved profoundly influential for the development of freedom of expression adjudication and for constitutional rights adjudication more broadly, the decision and the balancing language it employed also quickly came under fire from critics.
'This section aims to offer a first sense of what the ensuing debates looked like.It is useful to begin this exploration with the basic question ‘what did contemporary commentators think balancing was ’? Apart from a minority line of scholarship that sought to cast the Bundesverfassungsgericht’s balancing language as mere (misleading) rhetoric,[341] commentators predominantly interpreted balancing on two levels: those of constitutional theory and of (constitutional) legal reasoning.[342] The Court itself, of course, clearly saw balancing on the first of these levels, propagating balancing as part and parcel of an overarching constitutional theoretical construct. That construct was the ‘objective value order’, first announced in Luth. This ‘value order’ and its relation to balancing will be discussed in more detail in Sections D and E. For now, it is important to note only the striking contrast between the Court’s own emphatic commitment to balancing as constitutional theory, and the precarious position of these ideas within scholarly critique. Today, after more than half a century of ‘Wertordnungsjudikatur, the Luth turn to value balancing is seen as simultaneously ‘factually irreversible’ and ‘highly insecure in its dogmatic foundations’.[343] That assessment also seems an adequate description of the early reactions. Perhaps out of a sense of resignation, but probably also for reasons having to do with a widely shared scholarly commitment to constructive criticism, there seems to have been less of a sustained, vigorous questioning of this aspect of the Court's balancing approach than might have been expected.[344] 'The work of those authors that did voice this type of foundational critique - Ernst Forsthoff and Ernst-Wolfgang Bockenforde most notably - is also discussed in the next section.
Most authors, however, chose to discuss the Court's balancing on the level of (constitutional) legal reasoning or method.[345] A sampling of their thinking is presented here. Commentators working on this conceptual level tended to be preoccupied with projects of salvaging and disciplining elements of the Court's work. There were persistent attempts to rescue some basic ideas of balancing from the case law. These efforts often required recasting the Court's approach, sometimes in ways that sat distinctly uncomfortably with some of its explicit language. Many authors were also committed to projects of ‘disciplining' Bundesverfassungsgericht balancing, often under the heading of ‘Verwissenschaftlichung’ (‘rendering more scientific'). These projects took two principal forms. Some espoused technical suggestions for a more structured form of weighing and evaluating. Others, finally, turned to newly discovered standards for ‘good' legal reasoning.
2. ‘Verwissenschaftlichung’ (I): a more structured balancing
In a 1959 essay, Ernst Forsthoff, at the time one of Germany's leading administrative and constitutional law scholars, laid down an explosive challenge. The methods of the Bundesverfassungsgericht, he wrote, put the decade-old constitutional order in danger of ‘dissolution’, or even ‘decomposition’ (‘Auflosung’).[346] The Court's approach, based on ‘value analysis and value balancing', was no longer a ‘legal method' (‘ juris- tische Methode '), but had to be located within the realm of the humanities (‘Geisteswissenschaften ').[347] In an oft-quoted admonition that channelled familiar nineteenth-century sensibilities, Forsthoff wrote: ‘Legal science destroys itself when it does not adhere stringently to the position that legal interpretation is the determination of the correct deduction in the sense of syllogistic reasoning'.[348]
Forsthoff's comprehensive critique of the Bundesverfassungsgericht's methods in terms of a perilous ‘deformalization of the Constitution' was in many ways an outlier.
And most authors clearly thought that his proposed remedy, a return to the classic Savignian rules of interpretation, was anachronistic and impracticable.[349] But, equally, and in a more general sense, Forsthoff's call for methodologically pure, disciplined juristic thinking in constitutional rights law struck a chord with many of his contemporaries. [350]A first set of responses to Forsthoff's challenge focused on how the Court's balancing could be made more structured and less particularis- tic.[351] One prominent author taking this line was Roman Herzog, the later President of the Bundesverfassungsgericht. Herzog conceded that a balancing between competing goods on some abstract level was generally ‘ unum- ganglich ' (‘unavoidable'),[352] but attacked the individualized nature of the Court's balancing. In his leading commentary on Art. 5 Basic Law, Herzog noted how in the Luth case, the Court did not undertake ‘a balancing of legal values' (‘Guterabwagung’ ), but rather a balancing of the opposing interests of two individuals (‘Interessenabwdgung’).[353] This particularized weighing, he argued, posed a threat to legal certainty and enabled an inappropriate arrogation of judicial power to evaluate the merits of State action on an ad hoc basis.[354] Herzog instead pleaded for a more structured approach, to be undertaken in two steps. In a first stage, the Court should only look at the value of the competing ‘Rechtsguter (‘legally protected values or interests') in the abstract. A second step should then take into account what Herzog called the ‘Gefahrenintensitdt’, the degree to which the abstract value was threatened in the circumstances of a particular
case.[355] Such a phased review of ‘Schutzgut’ and ‘Gefahrdungsgrad’, the value to be protected and the severity of the threat, would mean drawing the ‘principle of necessity’ (‘Erforderlichkeitsprinzip ’), familiar from other areas of constitutional jurisprudence, into the area of free speech.[356]
Herzog’s theory, then, entailed a representative effort to discipline, or formalize, judicial balancing through a framework of ‘steps’ or ‘stages’.
In this sense, it was a clear precursor to the work of authors who increasingly came to see balancing as related to, or as part of, a comprehensive three-step proportionality model.[357] One delicate problem facing their efforts, of course, was that this reading was difficult to square with what the Court itself had been saying in Luth or in any of the other early freedom of expression cases.3. ‘Verwissenschaftlichung’ (II): dialectical rationality
and topical reasoning
Among writers on balancing of the early 1960s, one widely shared impression was the idea that some form of malaise in constitutional legal scholarship was at least partly to blame for defects in the Court’s approach. ‘'1 Theoretical scholarship has, until now, hardly offered any truly useful assistance to the courts’, wrote Friedrich Mil ller in 1966, summing-up this sentiment.[358] What was called for, then, was ‘ hermeneutische Prazisierung’, hermeneutical clarification and sharpening to be offered, naturally, by academics.[359] These two convictions help explain why authors asked for their contributions to be understood ‘not as criticism of the Court, but as a call to persevere in efforts to create a consistent, convincing constitutional dogmatics’.[360]
Intriguingly, the quest for such ‘hermeneutical sharpening’ took an exciting new turn just around the time the Bundesverfassungsgericht first began to invoke balancing.
(a) New standards for legal reasoning
The advent of balancing in Bundesverfassungsgericht case law coincided with the rise of new ways of thinking about what good legal reasoning should look like. By the early 1960s, the classical ideal of formal rationality in law as espoused by Forsthoff was coming under increasing pressure.[361] The classical orthodoxy of the ‘Subsumtionspositivismus’ presented an unattractive dilemma. Legal reasoning was either fully rational and conclusive, an ‘impossible demand’, or it was left ‘hopelessly in the hands of arbitrariness and convenience’.[362] To escape this dilemma, constitutional lawyers increasingly turned to theories of what was called ‘dialectical’ or ‘topical’ reasoning.
These theories were first developed by private law scholars and by philosophers in the course of the 1950s.[363] What they had in common was an abject rejection of formal-logical rationality as an appropriate ideal for legal reasoning; an opening-up of legal argumentation to new sources of input beyond merely legal norms; and, most comprehensively, a new emphasis on legal argumentation as a practical discipline aimed at convincing rather than at proving.[364] Only a few years after the Luth decision, public lawyers began to tap the work of these private law thinkers and philosophers to develop a new conception for rationality in constitutional legal reasoning. And so, when the German Association of Constitutional Law Scholars met in Freiburg for their 1961 annual assembly to discuss ‘Principles of Constitutional Interpretation’, the first such plenary discussion since Luth, the ideas of ‘dialectical rationality’ and ‘topical reasoning’ stood at the centre of attention.[365]These theories brought with them at least two perspectival changes highly relevant to the scholarly reception of Bundesverfassungsgericht balancing. To begin with, they offered new standards for the evaluation of the Court’s work. Out went the Weberian logical formalism of Laband, von Gerber and Forsthoff.[366] In came the idea that judicial reasoning had to be ‘optimally susceptible to debate', the aim of ‘maximale Diskutierbarkeit', and ‘convincing' according to a ‘consensus of all rational and reasonable individuals'.[367] They also suggested a new purpose for legal reasoning generally: the goal of the ‘Aktualisierung’ (‘actualization') or ‘Konkretisierung’ (‘concretization') of legal norms.[368] This meant determining the content and ‘the reality' of norms anew in each case, ‘bound by particular rules of art, certainly, but always with the aim of actuality.[369] Interpreters continuously had to try to bridge gaps between legislative ideals and social reality, and between past, present and future.
(b) Balancing and the new standards
Many influential scholars of constitutional law embraced at least some of the new thinking on topical reasoning.[370] Konrad Hesse, a later judge on the Bundesverfassungsgericht, noted in his widely used textbook that ‘Verfassungsinterpretation ist Konkretisierung’ (‘constitutional interpretation is concretization').[371] And so the question arises of how the Bundesverfassungsgericht's balancing fared when judged on the new dialectical, or topical, standards.
The short answer is: not very well. There was, to be sure, the odd positive appraisal. Ulrich Scheuner, for example, in a 1963 lecture argued that the critique of ‘logical deduction' and the project of ‘concretization’, when taken together, could only point to ‘the importance of balancing the relevant ethical principles as well as the social interests concerned in the interpretation of fundamental rights'.[372] Scheuner was therefore glad to observe ‘a clear commitment to the modern methods of interpretation' in the free speech case law of the Bundesverfassungsgericht.[373]
But for many authors the Court's balancing simply ‘did not convince'.92 Take Friedrich Muller's wide-ranging 1966 study on the structure of constitutional norms, for example. For Muller, the central question was ‘how the goods to be balanced may be rationally described and valuated in a verifiable and truly inter-subjectively debatable way'.[374] Muller's criterion ofthe ‘potential for inter-subjective deliberation' was clearly inspired by the scholarship on new forms of rationality. And it was on this standard that he found the Court's balancing deficient. The Bundesverfassungsgericht's balancing, he wrote, was ‘virtually unverifiable'; its decisions were pronounced in a way that was ‘ kaum anders als affirmativ’, scarcely different from merely propositional.[375]
Balancing's cardinal sin was to reduce judicial decision making to a ‘Wettlauf’, a shouting match between the parties, with the Court cutting off the formulation of claims by way of an ‘abrupt’ decision, in direct violation of the rules for forming agreement that were so central to the newer theories.[376] Balancing decisions, in short, did not rest on rational, inter- subjective deliberation, but merely posited ‘ein Wort [...] gegen ein anderes Wort'.[377]
This widespread rejection is particularly striking given how easy it is, in the abstract, to think of ways in which balancing and the standards of dialectical rationality could prove an almost ideal match. Balancing might be taken to open up judicial argumentation to the broader range of input that the dialectical scholars were keen on promoting. Balancing could also, again in theory, be a good fit for an understanding of legal reasoning as aimed at convincing rather than proving. These intuitive connections, together with the overwhelmingly constructive stance of German constitutional legal scholarship alluded to earlier, may explain a second important line in the literature: contributions that, while critical, sought to recast the Court's balancing in an idealized form to match dialectical or topical standards.[378]
The most influential attempt along these lines came from Konrad Hesse. In his constitutional law textbook, Hesse adopted the basic tenets of ‘topical reasoning' as the foundations for his approach to constitutional interpretation - an approach he labelled simply ‘Konkretisierung’.[379] One of the relevant ‘topoi’ or ‘Konkretisierungselemente’ for the Court to consider was ‘das Prinzip praktischer Konkordanz’ (‘the principle of mutual accommodation’).[380] This principle required the ‘establishment of a proportional correlation between individual rights and community interests’ and was aimed at the ‘optimization’ of competing values.[381] While much of this was superficially close to the Court’s own language, Hesse was at pains to distinguish his proposal from what he described as the Bundesverfassungsgericht’s ‘overly hasty’ and ‘excessively formal’ abstract balancing of values.[382]
In the end, these various projects to discipline the Court’s reasoning were in important ways similar. Some relied on the analytical constraints of ‘steps’ or ‘stages’ (e.g. Herzog), while others invoked certain rules of art for rational deliberation (e.g. Hesse). They tended to retain much of the Court’s balancing language, but ignored some of its component elements, rejected others outright and sought to reframe the remainder in ways more in keeping with their own theories.
D.