Local meaning, legitimacy, relativity

This book proposes a new direction for the comparative study of balan­cing. Rather than seeing terms like ‘balancing' and ‘weighing', or ‘propor­tionality', merely as the reflection of a fixed, stable underlying analytical process, it is possible to engage directly with this language and with the discourse to which it is central.

The elaboration of this alternative approach starts with a basic propos­ition. References to balancing or proportionality, in judicial opinions or academic legal writing, figure in a context of legal argumentation. Judges and writers referring to balancing do so in order to argue for or against a particular legal outcome, a specific doctrinal position or a more general understanding of the role of law and courts in society. In effect, from an external perspective, the most neutral answer to the question of what bal­ancing is, is simply a form of legal argument.^[61] As in ordinary language, this meaning will be governed by the rules of a locally prevalent ‘grammar' of legal discourse.^[62] But although this grammar will naturally differ from system to system, it will always remain, at least in some basic respects, a distinctively legal - ‘typically juridical' - grammar.^[63] The methodological framework used in this book is based on the idea that comparative legal studies can make strategic use of what we know about these ‘typically juridical' characteristics of Western law. Three dimensions of this shared juridical logic are of particular relevance. The first two - the legitimiza­tion imperative and the relativity of the meaning of legal arguments - are discussed in this section. The third, concerning the formal versus sub­stantive opposition, is presented in the next.

A first principal characteristic of juridical logic stems from the basic demand that courts in liberal democracies should, in principle, offer publicly stated reasons for their decisions whenever they exercise pub­lic authority in order to settle social, political or moral controversies.

My claim here is not that judges will always have grand questions of legitimacy foremost in mind, or even that they will always be fully con­scious of the broader implications of their arguments in any specific case. What I do argue, though, is that whenever a court invokes a particular type of legal argument, they are necessarily also insisting, albeit normally tacitly, that it is appropriate for them to be relying on that type of argu­ment in this situation. They must be taken, in other words, to assert that they are operating within the local range of acceptable arguments.^[66] The strength and variety of the reasons locally seen as supporting the use of any specific argument to justify the exercise of public authority under law - the reasons underlying this argument's acceptability, that is - can be labelled as its ‘legitimizing force'.^[67]

This assumption of course applies most directly to the work of courts. But it is relevant also for legal discourse among other kinds of participants in the legal order. This is because they too will be subject to the conven­tions and constraints that come with having to operate within the range of locally acceptable arguments. This ensures that ‘legitimizing force' will always be one dimension, though not necessarily the only dimension, of any argument's local meaning.^[68]

A second characteristic of juridical logic flows from the widely shared understanding in Western systems that legal actors will always have some degree of choice with regard to the specific arguments they invoke in defending and challenging exercises of public authority under law.^[69] This is not to say that this possibility of choice will always and everywhere be perceived in similar terms.

The advantage of this alternative perspective is that the nature of bal­ancing's legitimizing contribution - the ways in which balancing is taken to be relevant, its success or failure as a legal argument, even its very ana­lytical structure - can be left open as questions for the foreign system to answer. In this approach it is possible that the language of balancing may not always and everywhere signal the same underlying analytical process. Or that, even if similar processes are involved, they will come with fundamentally different implications. Rather than having to iden­tify a specific, uniform structure and function for balancing as doctrine beforehand, this alternative approach asks why this particular court and its audience see a need to balance - whether it is because they feel that this is what the protection of a particular fundamental right or perhaps the task of judges in a democracy is fundamentally about, for example, or because judges cannot agree on anything more than that some sort of accommodation between individual and societal interests is important.^[72] It then analyses the answers in the context of locally prevalent ideals of legitimacy.

D.