A hegemonic discourse

1. Doctrine, theory, portrait

The language of weights and weighing makes up much of the way we talk now in modern Western law. How much exactly, though, is not all that easy to say.

First, there are the judicial balancing references. Courts in many parts of the Western world often use very similar sounding balancing-related language in their decisions in constitutional or fundamental rights cases. In the second half of the twentieth century, the US Supreme Court, the Supreme Court of Canada, the German Bundesverfassungsgericht (Federal Constitutional Court), the Court of Justice of the European Union and the European Court of Human Rights, to list a number of prominent examples in Europe and North America,^[19] have all come to reg­ularly invoke the need to balance rights, interests or values when dealing with fundamental rights cases.^[20]

This same language figures heavily in constitutional legal scholarship within these systems. Primarily in response to judicial references of the kinds cited above, legal scholars have over the past sixty years developed a wealth of doctrinal commentary and critical evaluation, mostly consist­ing of intricate lessons for courts on when and how (not) to balance. This kind of scholarship grew so quickly that by 1965 already one American constitutional lawyer exclaimed: ‘[s]o much has been written on the sub­ject that the writers [...] have no doubt told us more about balancing than we wanted to know'.^[21]

Balancing's hold on legal thinking, however, extends far beyond doc­trinal commentary. Legal scholars have come to invoke the theme of balancing as a common focal point, a trope, for more abstract theoretical discussions of law and adjudication generally. A range of influential post­war writers, from the late Ronald Dworkin in the US to Jurgen Habermas in Germany, have all turned to the phenomenon of explicit judicial balanc­ing in order to frame broad arguments on the nature of rights and adju­dication.

There is more, though. Following-on from these references in case law and scholarship, recent decades have witnessed a subtle transfor­mation in perspective. Balancing is now often seen no longer as merely a phenomenon within constitutional adjudication, or as a lens through which to study constitutional law or even as possibly the most impor­tant lens through which to do so, but as an emblematic characteristic of constitutional law as such. In many Western jurisdictions, it has become increasingly common to invoke the language of balancing as an essen­tial element of the locally held ‘self-image' of constitutional legal thought and practice.^[23] Balancing, in these images, is part of what defines a par­ticular constitutional legal system, culture or epoch for its inhabitants. American constitutional law, for example, was said in the late 1980s to find itself in an age of balancing.^[24] The arrival of balancing tests, accord­ing to another American observer, heralded ‘the beginning of modern­ism in American legal thought'.^[25] And in German legal writing, balancing is seen as a new ‘Rechtsparadigma (‘a paradigm of law')^[26] or a new ‘Staatsgrundkonzeption ' (‘a conception of the foundations of the State' - predictably: a ‘balancing State').^[27]

All these references to the language of balancing, its invocations in case law and doctrine, but also as part of the imagery that legal actors use to make sense of their own constitutional law beliefs and practices, make up the discourse of balancing in contemporary constitutional jurisprudence.

2. Convergence and contrast

The reach of the language of balancing extends beyond domestic and regional legal systems and into the discipline of comparative constitu­tional law, where it has emerged as an important conceptual organiza­tional tool. In this context, the language generally figures in one of two principal ways: to voice ideas of universality or convergence, and as a marker of salient contrasts.

Studies of the first kind, in their most ambitious guises, invoke notions of descriptive or normative universality for balancing. Balancing, on these views, is either or both a universally valid description of what ‘actu­ally happens' in constitutional adjudication, and/or a universally desir­able ideal for what should happen. One early study along these lines, for example, claimed that ‘[j]ustices everywhere, who have the responsibility of deciding constitutional controversies, know that their task involves the identification and balancing of competing societal interests', before going on to list examples of the recognition of the ‘inevitability' of balancing in case law and literature from an extensive collection of systems.^[28] More recently, the Canadian scholar David Beatty has posited that the principle of proportionality - which for him encompasses a notion of balancing - is ‘an integral, indispensable part of every constitution'.^[29] Using reasoning and doctrines that are, strikingly, ‘virtually identical', balancing courts in different systems in Beatty's view are doing no more than explicitly recog­nizing this universal principle.^[30]

Other studies, still within this broad similarity-focused framework, describe the spread of references to balancing not in terms of universal normative appeal, but from a more dynamic, political science oriented perspective, as part of a contemporary ‘globalization of legal thought',^[31] or a trend of ‘judicial globalization'.^[32] In this vein, Alec Stone Sweet and Jud Mathews observe: ‘Over the past fifty years proportionality balanc­ing [...] has become a dominant technique of rights adjudication in the world'.^[33] Another example of this approach is Thomas Grey's argument that the broad formulation of post-1945 constitutional rights guarantees and the influence and prestige of the European Court of Human Rights and the Court of Justice of the European Union, have helped spread a ‘policy-oriented pragmatic style of adjudication' throughout Europe and beyond.^[34] The core of this new judicial pragmatism, in Grey's view, consists of ‘purposive reasoning, balancing and proportionality'.^[35] And Duncan Kennedy, finally, has argued that ‘balancing of conflicting con­siderations' is one of two defining characteristics of a ‘globalization of legal thought' which, from origins in US law, has gone on to conquer the postwar legal world.^[36]

Comparative scholarship of a second variety, on the other hand, takes up the language of balancing rather to frame contrasts between legal sys­tems. Studies in this vein build on the assumption that differences in the ways legal communities do, or do not, use balancing-based language mat­ter, and that analysing these differences is a suitable way to go about fram­ing salient points of comparison between legal systems and cultures.

The main thrust of these studies has been to contrast US constitu­tional jurisprudence with experiences in Canada, Europe and elsewhere. Kent Greenawalt, for example, has compared US and Canadian freedom of expression adjudication by asking whether courts use a ‘balancing' approach in which they ‘openly weigh factors', or a ‘conceptual' approach, relying on ‘categorical analysis'.^[37] Greenawalt concludes that in this area ‘[t]he Canadian Supreme Court is developing a distinctive balanc­ing approach [.] and avoids relying as much upon categorical analysis as do US courts'.^[38] Frederick Schauer has similarly contrasted different approaches to freedom of expression adjudication through a balancing lens. He writes: ‘there is a view, widespread in Canada, in Europe and in South Africa [and elsewhere], that American free-speech adjudication is obsessed with categorization and definition. Under this view, American free speech adjudication disingenuously [...] masks the difficult weighing process that the Canadian, European and South African structure both facilitates and makes more transparent'.^[39]

3. A global community of discourse?

These two approaches, while obviously coming to very different sub­stantive conclusions, proceed on the basis of the same methodological assumption. In both, it is tacitly taken for granted that the language of balancing has the same meaning wherever it surfaces. If it did not, com­parative observations based on the incidence of this language, as well as any conclusions framed using this language, would obviously become unstable. In this sense, both the similarity- and the contrasts-focused approaches locate themselves within a global age of balancing: an age in which even those wanting to emphasize differences between legal systems find themselves having to rely on this unifying language to make their point.

Comparative lawyers would do well, however, to heed Mirjan Damaska's warning, that any semblance of such a ‘community of dis­course' - of an apparently shared conceptual language - could lack sub­stance, and could in fact be ‘mainly a rhetorical achievement'.^[40] That risk seems particularly acute when such a community would have to exist on the kind of grand, global scale that comparative studies of balancing commonly claim for it.

These questions have so far largely escaped sustained academic atten- tion.^[41] They all raise the fundamental question of how the discipline of comparative law should engage with the pervasiveness of the language of balancing in contemporary constitutional adjudication practice, critique and theory.

B.