Introduction
Between roughly 1900 and 1930, academic lawyers and judges in the US and in Europe first began to describe law and lawmaking in terms of balancing and weighing of interests. In these two settings, the new language first appeared as part of a critique of late-nineteenth-century ideas and sensibilities now often called ‘classical orthodoxy’ or ‘classical legal thought’.
In Europe, this orthodoxy was the ‘Pandektenwissenschaft’ of Puchta and Windscheid in private law, and what the critics labelled as ‘Begriffsjurisprudenz’, the ‘jurisprudence of concepts’, in private and public law more generally. In the US, the classical model was thought to consist of an uneasy amalgam of a distinctive conception of legal science in private law - associated in particular with the work of Dean Langdell at Harvard Law School - and a broadly laissez-faire approach to constitutional review in the courts.[96] The first and most significant alternative approaches invoking the language of balancing were developed by 1’rancois Geny in France, by Philipp Heck and his fellow members of the school of Interessenjurisprudenz (‘Jurisprudence of Interests’) in Germany and by Roscoe Pound and other ‘Sociological Jurisprudes’ in the US.Both in criticizing classical orthodoxy and in developing alternative visions, including those turning on balancing, American scholars drew extensively upon European ideas. These interrelationships have since lent further force to a common impression that these American and European orthodoxies, their critiques and their replacement projects were all, in essential respects, similar. Lon Fuller, for example, writing in the late 1940s, was impressed by how Dean Langdell’s thought and method had resembled ‘in striking measure those of his German counterpart, Windscheid'.[97] Both, he noted, ‘practiced a peculiar geometric brand of legal reasoning' and ‘postulated a gapless system of pre-existing law, from which the solution for every new case could be obtained by deduction'.[98] As to the critique of this classical heritage, Roscoe Pound himself by 1913 wrote of a ‘reaction from the [...] jurisprudence of conceptions' that had been ‘in progress the world over'.[99] And with regard to the balancing-based replacement projects, finally, the German emigre professor Wolfgang Friedmann early on observed a ‘strikingly similar development of an Interessenjurisprudenz by American lawyers against the background of a very different legal system'.[100] It is this long tradition of emphasis on similarities that forms the backdrop to the analysis undertaken in this book.
This chapter uncovers balancing's beginnings, or its intellectual origins and early critiques.
It presents a comparative historical analysis of the emergence of one mode of legal discourse - the ‘free scientific research' of Geny and the balancing of interests of Heck, Pound and others - as part of a critique of, and as an effort to replace, another - the discourse of classical orthodoxy. In summary form, the argument is that American lawyers took the methods of French and German private law scholarly critique and turned it into a critique of American constitutional adjudication. This process of appropriation resulted in three early meanings for the balancing of interests: as a modest element in a modest project of methodological adaptation (Geny); as the centrepiece of a ‘purely juristic', legal-practice-oriented theory of adjudication (Heck); and as a ‘Progressive device' for reform, in which the idea of ‘interests' was central, and ‘balancing' appeared almost as an afterthought (Pound). It also laid the foundations, in US jurisprudence, for intellectual associations between method and politics - and more specifically: between form and substance - that have exercised a pervasive influence on legal thinking throughout the twentieth century. These associations, and their absence in European law, continue to affect the meanings of balancing today.The chapter proceeds as follows. Section B discusses the images of late- nineteenth-century legal thought and its associated methods adopted by the twentieth-century critics. Section C does the same for the earliest projects of legal-methodological reform, in particular those invoking the imagery of weighing. The focus here, as throughout this book, will be on Germany and the US, but some attention will also be paid to the work of Francois Geny in France, as a precursor - and to some extent source of inspiration - to both settings. Section D offers some concluding observations, setting the stage for the analysis of balancing in postwar constitutional rights jurisprudence in Chapters 3 and 4.
B.