A puzzle: reconciling turns to balancing and legalism
The discipline of comparative law offers a hard-won but simple lesson for any study of legal discourse: it would be little short of astonishing if similar language, even the same words translated as literally as possible, did have the same meaning in different legal systems and cultures.
In comparative project after project, as soon as rudimentary elements of context, history and mentality are taken into account, cracks quickly begin to appear in even the sternest facades of uniformity.And yet, curiously, when it comes to one of the central preoccupations of late twentieth- and early-twenty-first-century constitutional jurisprudence, these lessons are often, apparently, forgotten. Instead, the rise of the language of balancing and proportionality is commonly invoked as the foundation for extraordinarily far-reaching comparative claims. [1] Such claims tend to amalgamate a familiar torrent of references to weighing in case law and legal literature into some form of ‘globalization of constitutional law', understood to be a worldwide, or almost worldwide, movement of convergence on a ‘global model' of rights adjudication, possibly underpinned by an emergent, shared ‘ultimate rule of law'.[2]
Some of this may in fact capture contemporary trends. It is not unreasonable to assume that judiciaries operating in interconnected societies and often facing similar issues might turn to somewhat similar legal methods, doctrines or philosophies. But certainly insofar as they relate to balancing, these claims of convergence also face some formidable obstacles. One way of bringing these into focus is by asking how this inferred global turn towards a shared model relates to classic accounts of differences between styles of legal reasoning among different legal systems and cultures. Of particular interest, from that perspective, are studies from within a rich tradition that has sought to cast such differences in terms of a formal versus substantive dichotomy.
Classic comparative accounts of law and legal reasoning in the US and Europe have often invoked sets of sliding scales that run between some conception of legal formality on one extreme, and one or more of formality's opposites on the other, in order to frame salient differences. In this way, the syllogistic mode of reasoning found in the official, published decisions of the French Cour de cassation and the efforts by the German nineteenth-century Pandectists and their successors to build a coherent and gapless legal system have long served to ground the argument that law and legal reasoning in Continental Europe are traditionally overwhelmingly ‘formal', or ‘legalist'.[3] Legal reasoning in the US, by contrast, is commonly thought to be more ‘pragmatic', ‘policy-oriented', ‘open- ended', or, in the most general terms, more ‘substantive'. The orthodox argument in this field is that while American and Continental-European jurisprudence were both strongly formal in orientation at the end of the nineteenth century, American legal reasoning has since been subjected to a devastating Realist critique that has unmasked legal formality as ‘merely a kind of veneer'.[4] Legal thinking in Europe, notably in Germany, was at one time early in the twentieth century in thrall of a very similar line of critique. But attacks on legal formality, or belief in law's autonomy, simply have never had the same long-term impact on mainstream European jurisprudence as they had in the US.[5]
It is when this historical narrative is extended to take postwar developments into account that a close connection to the topic of balancing appears. The rise of constitutional rights adjudication during this period, this story typically continues, has come to undermine these long- established differences. This is because leading courts in Europe and elsewhere outside the US have adopted a style of reasoning in rights cases that appears to be surprisingly and radically open-ended and pragmatic - in short: informal, or less legalist.
‘A common cliche has it that legal systems from the common law tradition produce case law, while so-called continental legal systems strive for codification and a more systematic jurisprudence', Georg Nolte notes, for example, in a comparative study of European and US constitutional rights law. Nolte continues: ‘The question, however, is whether the opposite is not true for today's constitutional adjudication', adding that ‘[i]n its freedom of expression case law, for example, the US Supreme Court strives to develop “tests” that are on a similar level of abstraction as legislation [while] The European Court of Human Rights and the German Bundesverfassungsgericht on the other hand, typically insist on a balancing of “all the relevant factors of the case’”.[6] Nolte sees these European examples as following an approach to constitutional adjudication that is, overall, ‘less rigorous’ than that found in the US.[7]As this quotation illustrates, the stories of the rise of balancing and of the supposed de-formalization of postwar legal reasoning in the constitutional rights context, are intimately related. The turn towards balancing and proportionality reasoning by European courts and other non-US courts is read as a turn away from legal formality - a turn away from reliance on legal rules, from ‘rigour’ in legal thinking, and from belief in the possibility of juridical autonomy more generally. Conversely, it is the US Supreme Court’s preference for ‘rules’ and its encasement of balancing in the form of ‘tests’ that make its constitutional rights reasoning more formal.
This account of the role of balancing in constitutional rights adjudication, it seems, can support only one conclusion. And that is that judicial balancing and legal formality are radical opposites. This, certainly, is the dominant American view in this area.[8] The idea of constitutional law ‘in an age of balancing’, as one famous depiction has it, is very much the idea of law in an age of lost faith in legal formality.
Adjudication, on this view, can be no more - and is no more - than a pragmatic, ad hoc, instrumentalist approach to deciding cases. The courts’ balancing rhetoric is the principal expression of this realization. And so, it is not surprising to see US lawyers describe value- and interest-balancing, ‘all things considered judgments’, and proportionality reasoning as manifestations of ‘ the form that reason will take when there is no longer a faith in formalism’.[9] ‘As long as belief in a formal science of law is strong’, Yale Law School’s Paul Kahn writes, ‘the reasoned judgments of a court look different from the “all things considered” judgments of the political branches. When reasonableness replaces science, however, the work of a court looks like little more than prudence.'[10]This conception, of course, fits snugly with the broader American story in which balancing and the rise of scepticism - the more familiar designation of a loss of faith - in law are intimately related. But when developments in other countries than the US are taken into account, problems emerge. The loss of faith narrative quite clearly does not work. To begin with, the available evidence suggests rather strongly that legal systems outside the US have not, over the past decades, experienced anything like an American-style surge in scepticism about law and judicial institutions. So, for example, where US lawyers continue to fret over the familiar counter-majoritarian dilemma, German writers and judges worry, conversely, that ‘[t]he German faith in constitutional jurisdiction must not be allowed to turn into a lack of faith in democracy'.[11] But the evidence against a sceptical turn outside the US is much broader and encompasses many more systems. The embrace of supra-national courts such as the European Court of Human Rights or the International Criminal Court, for example, but also the fundamentally constructive nature of most doctrinal writing in many legal systems are telling signs of a pervasive ‘faith in and hope for law'.[12] These are, if anything, manifestations of a ‘turn to legalism' rather than any turn towards scepticism and pragmatism.[13]
Further tangles to this basic puzzle are now quick to surface.
Is it really plausible that legal cultures with a long tradition of high formalism and of attachment to legal doctrine and legal rigour, like those in Continental Europe, would suddenly have abandoned these long-held views? If so: did lawyers in these systems retain their belief in legal formality in other areas of law, but abandon it completely in the field of constitutional rights adjudication, where balancing now dominates? Or has legal formality been entirely disenchanted, and have German judges and legal scholars, to use the most striking example, really ‘replaced legal science' and centuries of conceptual refinement with mere reasonableness and prudential reasoning? If so, it might be asked, why does private law adjudication and scholarship in European countries, like Germany, still look so very different from American legal theory and practice? Why, come to think of it, does German and European constitutional law scholarship still look so very different from its US counterpart?And on the American side of this story, too, matters do not quite fit. Granted, the specific idea of balancing as anti-formality, or non-law, could still hold in this setting. But if there really has been a comprehensive loss of faith in the formal attributes of law and legal reasoning, why would American courts and commentators still bother to encase balancingbased reasoning within the confines of strict rules and multi-part tests? Surely these elaborate legal constructs, designed specifically to dam in what are seen as the most pernicious aspects of open judicial weighing, must signal some remaining commitment to legal formality and doctrinal craftsmanship?
C.