Rethinking balancing, rethinking legalism
The main argument of this book consists of a three-part answer to this puzzle of how turns to balancing and to legalism might be reconciled. First: balancing does not mean the same thing everywhere.
Second: analysing these different meanings reveals that the opposition between balancing and legal formality does not hold in all contexts. These different meanings, in turn, do not allow for a simple conclusion that European and other non-US adjudication styles have become pragmatic, policy- oriented or informal in the sense these terms are commonly understood. And third: rethinking the meaning of balancing brings with it a need to rethink the nature of legalism itself.[14] Not only ‘balancing', but also the central organizing terms of ‘formal' and ‘substantive', and the very character of legalism as an attitude to law, carry different meanings in these different settings.This argument is developed by way of a case study on German and US jurisprudence. It was in these two systems that, at virtually exactly the same time in the late 1950s, high courts first began to discuss constitutional rights issues in balancing terms. Chapters 3 and 4 discuss both these judicial references and the surrounding scholarly and judicial discourse in some detail. In both these settings, these first judicial references followed earlier virtually simultaneous invocations of balancing in scholarly legal debates of the early twentieth century, in the context of the Interessenjurisprudenz in Germany and Sociological Jurisprudence in the US. These earlier invocations are studied in Chapter 2. Adopting this narrow lens of two parallel sets of self-identified balancing debates should make it possible to uncover the meanings of the discourse of balancing at its inception.
Throughout this book, but most particularly in Chapter 5, these different meanings will be translated into the conceptual vocabulary of the formal versus substantive opposition.15 The discourse of balancing, I argue, is the principal contemporary site for where the formal and the substantive in law meet.
And certainly as between German and US jurisprudence everything about these encounters is different. Where a rulebased, constraining formality is predominant in the US, legal formality in German jurisprudence is conceptual and exhortative, even perfectionist. The substantive in law, which equals policy and pragmatism in the US, finds expression in an extraordinarily powerful and complex set of ideas known as ‘material constitutionalism' in Germany. And where the formal and the substantive co-exist in a constant state of conflict and unstable compromise in US law, German jurisprudence continually strives for synthesis.In no small part, the astounding capacity of the discourse of balancing to mean all things to all people rests precisely on the many different ways it gives shape to the discursive management of the formal versus substantive opposition in law. Balancing can stand for both intuitive reasoning that is formalized to an unusual degree, and for formal legal reasoning
for these other settings a more radical rethinking of legalism may be required, it still seems difficult to sever completely the connection between legalism as a general faith in the juridical, and legal formalism as faith in the possibility of juridical autonomy more specifically.
15 See further Chapter 1, Section D.
that is unusually open. Balancing can be both an admission of the limitations of formal legal analysis, and an attempt to stretch formal legal reasoning as far as it might go. Balancing can be principle and policy, conceptual synthesis and pragmatic compromise. Balancing, I argue in the final chapter of this book, can form the centrepiece of a mode of reasoning that ‘substantivizes' its formality, and of a discourse that is in an important sense ‘formally substantive'.[15] And when what is emblematic for legal reasoning in different settings is not so much the fact that it combines both more formal and more substantive elements, but how it does so,[16] studying the discourse of balancing opens up a uniquely privileged vantage point from which to analyse and compare what legal reasoning, in these different places, to a large extent, is all about.
For that last - large - question, the discourse of balancing proves revealing in a final, perhaps unexpected, way.
If formalism and legalism are, at heart, expressions of beliefs relating to qualities ascribed to legal institutions - those qualities that make up the ‘internal dynamics of juridical functioning',[17] - then the character of those beliefs may well vary in ways that could be distinctive for the communities of legal actors who hold them. And in this regard too, the discourse of balancing occupies a unique position. This is because this particular language can be the expression of both a deep-seated scepticism towards the legal, and of a faith in law of such fervour and ambition that non-believers may find difficult to take seriously. I argue in Chapters 4 and 5 that the discourse of balancing in US constitutional rights jurisprudence reveals a faith in law that is halting, tentative and always constrained by powerful sceptical tendencies. The tropes that typically surround the vocabulary of balancing show this very clearly: ‘bright lines' wobble on ‘slippery slopes', ‘absolutes' are ‘relativized' and formalism itself is ‘pragmatical' and in need of ‘empirical support'. The relative strengths of these contradictory impulses are continuously subject to reassessment, as ‘spectres' from earlier misguided eras continue to haunt, ‘revisionism' is revisited and American jurisprudence as a whole is described as existing in a permanent state of ‘schizophrenia'.[18] It is revealing to compare these figures of speech with the tropes surrounding the vocabulary of balancing in Germany. There, a list of dominant terms would have to include words such as dialektisch (dialectical), prinzipiell (principled), durchtheoretisiert (fully theorized), Einheitsbildung (fostering of unity), ‘logisch-teleologisch’ (logical-teleological), Optimierung (optimization) and Synthese (synthesis).In one sense, all of what follows in this book builds on a simple contrast. If there is even some marginal consensus on the kinds of differences identified in simple lists like these, then we must begin to rethink the apparent commonality of the discourse we seem to share.
If so much else about the language of American and German or European lawyers is so different, surely when the same or similar words do appear, they will come with different meanings, even radically different meanings?This, then, is what I hope to show: that the discourse of balancing, for all its global pervasiveness, does not mean the same thing everywhere. Balancing, instead, has come to rule our legal imagination because, Humpty Dumpty-like, it means exactly that which everyone, everywhere, expects, wants and fears it to mean. Those expectations, as illustrated in the two - really only mildly caricatured - lists above, are consistently more ambitious, more hopeful for the power of legal ideas in German and Continental-European jurisprudence than in the US. This ambition is not a good in and of itself. That much is demonstrated by the Orwellian flights of conceptual fancy engaged in by some legal scholars under fascism. But it is this same ambition that has now also served, for more than half a century, to uphold a liberal constitutional order with a reach that is unprecedented. A reach, in addition, that would be unthinkable in the US. I argue in this book that the different meanings of the discourse of balancing - as the cornerstone of a ‘perfect constitutional order' and as a ‘dangerous doctrine' - are central to these radically different understandings.
The irresistible propensity in balancing to conform to expectations - those of its advocates, but also of its critics - is the source of its strengths, but also of its weaknesses. The dominance of the discourse means that these strengths and weaknesses reverberate widely. And so, while this book may disappoint in not offering suggestions on how to (or how not to) balance, it does stem from the conviction that uncovering the contingency of our received interpretations must itself be a worthwhile project.