Introduction
Balancing, I have argued throughout this book, is capable of having, and does in fact have, multiple, radically different meanings. Chapter 3 gave an account of balancing in German constitutional jurisprudence as both sustaining and reflective of ideas of ‘material constitutionalism' and of the ‘comprehensive constitutional order'.
These ideas were themselves in turn identified as aspects of what was there called, in provisional terms, an underlying constitutional legal ‘perfectionism'. Balancing, in all these various senses, was central to the foundations of postwar German constitutionalism. In US constitutional jurisprudence, by contrast, as discussed in Chapter 4, judicial balancing was seen rather as a pragmatic, incremental solution for when doctrinal frameworks no longer ‘worked', because they were no longer capable of generating commitment among legal actors, or because new fact patterns arose for which they were thought not to offer acceptable outcomes. This pragmatic form of balancing was generally viewed with suspicion rather than aspiration, and stood in a constant dialectic of opposition with elements of alternative modes of thinking; those of ‘reasoned justification' and of the ‘definitional tradition' in American law.This final chapter aggregates these different meanings encountered so far into two paradigms of balancing discourse. These paradigms are condensed, abstracted depictions of characteristic elements of the ‘German' and ‘US' meanings of balancing for the period studied.[827] In the definition adhered to here, legal paradigms have four distinctive interrelated features. First, their propositions generally remain implicit, which means that they must normally be gleaned indirectly from the discursive practice of participants in the relevant system.[828] Second, they are ideal typical in the sense that they are abstractions typifying locally held ideas.
Paradigms are implicit analytical constructs of which it is expected that, if they were to be made explicit, most local legal actors would accept most elements most of the time.[829] A third distinguishing feature of paradigms is the way they exercise a real hold on the thought and practice of those within their reach. Paradigms are not theories or principles that can simply be adhered to or not. They constitute a framework within which even opposing theories are formulated.[830] In the context of adjudication, paradigmatic understandings of law ‘influence judges collectively', by stabilizing interpretive practices over time and across different areas of law.[831] Finally, paradigms are, within their area of operation, comprehensive in coverage. Paradigms ‘contain not just the meaning of a particular institution [...] but rather the whole set of instruments, argumentative modes, and theories connected with this institution, as well as other, related institutions'.[832] Paradigms of balancing, as defined here, are comprehensive in their coverage of the use of the language of balancing and its related vocabulary, ideas and practices; that is, of the discourse of balancing in a broad sense. No further validity is claimed for them here.[833]The two paradigms of balancing discourse will be elaborated using the common conceptual grid of the formal versus substantive opposition, set out in Chapter 1, and illustrated at the end of the chapter in a table that contrasts elements of the German and US approaches. In the course of the chapter, three successive sections discuss different ideal typical local understandings for each of the elements of ‘the formal', ‘the substantive', and their interrelationship. The formal will be shown to refer to ideas of perfection in German constitutional jurisprudence and of limitation in the US. ‘The substantive' will be identified as ‘material constitutionalism' (Germany) and as policy and pragmatism (US). And where German constitutional jurisprudence tends to think of the relationship between these elements in terms of synthesis, the co-existence of formality and its opposites in American jurisprudence is marked rather by conflict and paradox.
Section E in this chapter then broadens these accounts by looking at the question of the nature of the attitude held by local legal audiences toward the formal versus substantive dilemma. This, as discussed in the Introduction and in Chapter 1, is the question of the nature of their legalism. These attitudes will then be used to distinguish German and US ways of balancing in terms of faith in, and scepticism over, law. The same language of balancing, I argue in conclusion, can be the expression of both an aspirational legalism and of a sceptical-pragmatic approach to law.
B.