The formal and the substantive: conflict and synthesis

If the discourse of balancing is one of the primary sites in constitutional jurisprudence where the formal and the substantive, in all their different guises, meet, what is the nature of these meetings? How, in other words, do the formal and the substantive interact in paradigmatic versions of German and US constitutional rights jurisprudence, as exemplified in the discourse of balancing?

Answering that question requires a brief return to two basic approaches to the roles of legal formality and its opposites in comparative studies of legal reasoning outlined earlier.^[927] In the first of these, legal reasoning in one system is identified as more formal or less formal than in another.

1. The formal and the substantive in US constitutional jurisprudence

Lasser's studies build towards a striking contrast. On one side stands a French judicial discourse that is ‘bifurcated' between an open-ended but hidden dialogue among magistrates and a public, official, judicial discourse that is formal in the extreme. On the other side, an American judicial discourse that integrates its formalist and policy-oriented dis­courses in one space: the individually signed published opinion.^[929] In these American opinions, the informal elements of judicial reasoning are then hemmed in by the formal strictures and categorical frameworks of so-called ‘multi-part tests', schemes of ‘tiered scrutiny' and other struc­turing devices.^[930] What this means, in Lasser's view, is that ‘the composite character of American judicial discourse produces and/or is constituted by a certain formalization of purpose/effect/policy discourse'.^[931] This ‘formalization of the pragmatic', Lasser concludes, might well be ‘the defining trait of American judicial discourse as a whole'.^[932] That charac­terization seems widely shared among American observers.^[933]

These ideas of ‘integration' and of a ‘formalization of the pragmatic' capture much of what is salient about the character of American judicial discourse, and of American legal discourse more broadly, certainly in the area of constitutional law.

The material covered in Chapters 2 and 4 suggests ways to complement and nuance this picture of how formal and substantive elements co-exist in US constitutional legal discourse. What is distinctive about this dis­course, on this view, is not only that the formal and the substantive are commonly combined in one place, but also the fact that, in those com­binations, formal and substantive remain distinct entities. They exist in a relationship of combination and juxtaposition rather than of integration or synthesis. This is exemplified in the side-by-side existence of categorical and more open-ended ‘steps' in the typical American ‘multi-part' doctri­nal test. What is striking is that in those tests, as elsewhere in American jurisprudence, formality is optional. It is a matter of strategic choice by participants. This strategic dimension of legal formality is informed by, and does itself sustain, the idea that legal formality has inherent substan­tive implications. The formalization of the pragmatic (the substantive), in other words, goes hand in hand with an ‘instrumentalization' (‘substan­tivization') of the formal, and, ultimately, a conception of the formal as a particular brand of substantive.^[936] The following paragraphs expound on these characteristics in turn.

(a) Formal and substantive: combined but separate

In American constitutional legal discourse, formal and substantive elem­ents appear side by side.

Examples abound of this intertwined-but-separate relationship between the formal and the substantive. Two particularly illustrative instances from among the material covered in Chapter 4 can be found in the work of John Hart Ely and Melville B. Nimmer. Both these authors wrote in reaction to the ostensibly all-or-nothing balancing versus abso­lutism controversy of the late 1950s and early 1960s. In Ely's view, ‘what the decisions of the late Warren era began to recognize is that categoriza­tion and balancing need not be regarded as competing general theories of the first amendment, but are more helpfully employed in tandem, each with its own legitimate and indispensable role in protecting expression'.^[941] Nimmer, for his part, aimed to construct a ‘third approach' to free speech adjudication, situated in between what he saw as the ‘equally unaccept­able' alternatives of literal interpretation and ad hoc interest balancing in first amendment cases.^[942] ‘Definitional balancing’, as Nimmer labelled this middle way, aimed to combine the virtues of balancing and of more for­mal approaches, without falling into the alleged excesses of either.^[943]

(b) The formal as substantive: the instrumentalization of legal formality

This idea of the formal and the informal as separate but combinable produces, sustains and is constituted by a conception of legal formality as a matter of choice for participants.

When legal formality and its opposites are seen as a matter of choice and strategy, the question of the reasons for this choice will quickly come up for scrutiny. That question has given rise to a type of jurisprudential enquiry that is far more pervasive in American legal thought than, it would seem, anywhere else. This ‘jurisprudence of form' is premised on the notion that the choice between the tools of legal formality (e.g. rules) and of informality (e.g. standards) ‘can be analyzed in isolation from the substantive issues' that these tools respond to.^[947] Once legal formality is a matter of choice, however, and once the reasons for this choice are seen to be the ordinary reasons of policy, politics and ideology, this position of course translates into nothing less than the instrumentalization of legal formality.

This instrumentalization of legal formality has a long history in American jurisprudence. At the beginning of the twentieth century, as described in Chapter 2, it was the Supreme Court's alleged adherence to formal methods of interpretation that took the blame for its rejection of socially progressive legislation. Roscoe Pound and others denounced the Court's method of ‘logical deduction' as producing judgments which were ‘wholly inadequate' for industrialized society.¹²³ The invention of this ‘Demon of Formalism' - the attribution of substantive implications to questions of form - has been an astoundingly successful jurispruden­tial innovation.¹²⁴ Just as Pound decried the false belief of formalist judges in the necessity and neutrality of their methods, he and his fellow critics managed to instill another belief, at once entirely similar and radically opposite, among wider legal academic and judicial circles: a belief in the hidden political motivations for, and disastrous substantive implications of, legal formality.¹²⁵

Comparable inventions of connections between legal form and sub­stantive outcomes could be observed in the period discussed in Chapter 4.

G. Edward White has written, these methodological critiques ‘inevitably

1950s-1960s constitutional law ‘balancing debates' canvased in Chapter 4. See his 1969 Yale Law Journal Student Note on ‘Civil Disabilities and the First Amendment'. For another influential project, also discussing balancing, see Sullivan (1992a) and Sullivan (1992b).

¹²³ Pound (1908), p. 616.

¹²⁴ Cf. Grey (2003), p. 477. The debate over the formalism of the Lochner era continues. See, e.g., Phillips (2001) and, more recently, Tamanaha (2009). There is, of course, a paradox here: the possibility of a ‘jurisprudence of form' depends on form and substance being separate; its meaningfulness depends on their connection.

¹²⁵ Pound (1908), p. 608. ¹²⁶ See, e.g., Sullivan (1992b), p. 294.

¹²⁷ White (1973), pp. 279-80.

took on substantive content with the explosive loss of social consensus on first principles in the 1960s’.^[948] Again and again, American constitutional jurisprudence shows the imprint of a powerful shared intuition, or sus­picion, that the formal and the substantive must somehow be connected, that methodological choices must have ideological implications, even if the nature of these connections remains highly contested.^[949]

This instrumentalization of formality has surprising implications.

The categorizers were right: [Th balancing tests inevitably become inter­twined with the ideological predispositions ofthose doing the balancing - or if not that, at least with the relative confidence or paranoia of the age in which they are doing it - and we must build barriers as secure as words are able to make them. That means rigorous definition of the limited cat­egories of expression that are unprotected by the first amendment.^[950]

Of course, neither of these paradoxes is insoluble. Judicial self-restraint is both widely observed as an empirical phenomenon and commonly advo­cated as a normative position.^[951] And the power of tests and categories could lie merely in their appeal to such judicial self-limitation, even if that appeal is mainly or even purely rhetorical. But the impression given by

much of the American legal literature is that this is not how formality and formalism are actually understood. Legal form can constrain; hard and fast rules do bind; ‘rigorous definition' is able to prevent the ideo­logical bias of balancing.^[952] And balancing, quite simply, is ‘nothing like rule-application.¹³³

2. The formal and the substantive in German constitutional jurisprudence

In German legal thought, and in Continental-European legal thought more broadly (although that claim cannot be fully substantiated here), legal formality is not a matter of choice or strategy. Formality, rather, is always present, even in the most seemingly open-ended, apparently infor­mal legal settings, such as constitutional rights balancing. In contrast to the American context, where formality is simply a different kind of substance, in German constitutional jurisprudence, the substantive has always remained formal.

Reference has been made before to standard American observations on the alleged extreme informality of German and European constitutional rights balancing, exemplified in references to European rights case law as ‘Khadi'-like. Clearly, the type of balancing engaged in by the German courts is not formal in the paradigmatic American understanding of rules and categories. But the argument developed here is that this type of discourse is not only formal by other means, but also that it integrates formal and substantive elements in ways quite unlike those seen in US jurisprudence. To this end, this section presents the following three argu­mentative steps, all designed to highlight differences with paradigmatic US understandings.

First, in the German setting, legal formality is achieved primar­ily through conceptualization and systematization, rather than by way of constraint through doctrinal rules. This ‘conceptual formality' then allows for the infusion of substantive values into law in a way that is very different from the ‘rule formality' found more typically in US jurispru­dence. Secondly, within German constitutional jurisprudence unremit­ting efforts are made to synthesize formal and material elements. This ‘synthesis tradition' in constitutional law goes back to at least the Weimar era, and has maintained its strength both through law under fascism and in the era of the Basic Law. These fusions and amalgamations, inci­dentally, are much easier to achieve with a conceptual, or system-based, understanding of legal formality, than with any understanding empha­sizing rules. Thirdly, in US constitutional jurisprudence, the typical way of framing the relationship between form and substance in constitutional law is by way of a ‘blaming method': a search for undesirable substantive consequences of formal choices. That particular argument is dramatically less common in German jurisprudence. This, even despite the obvious elephant-in-the-room-candidate of law under fascism.

(a) Conceptual formality versus rule formality

Where in US constitutional jurisprudence legal formality is vested pri­marily in rules, categories and definitions, formality in the German tradi­tion is seen to lie in concepts, system and deduction. All these elements go back to nineteenth-century understandings of the nature of law and ‘legal science'.^[953] ‘The idea of a science of German private law', Franz Wieacker has noted, was founded on a ‘juristic formalism' that transferred ‘the sys­tematics and concept-building of Pandecticism to substantive German private law'.^[954] Its formalism, therefore, was first and foremost a ‘concep­tual formalism',^[955] based on the ‘assumption of the perfection and inher­ent completeness of the system',^[956] and on a powerful faith in deductive logic.^[957]

Notwithstanding the radical critique levelled at this conceptual for­malism during the late nineteenth and early twentieth century, all these ideas retain their relevance for postwar German legal thought, both in private and in public law. This is how Gunther Teubner, for example, char­acterizes the role of the principle of ‘good faith' in Continental European private law:

[T]he specific way in which continental lawyers deal with such a ‘general clause' is abstract, open-ended, principle-oriented, but at the same time strongly systematised and dogmatised. This is clearly at odds with the more rule-oriented, technical, concrete, but loosely systematised British style of legal reasoning.^[958]

‘Conceptual systematisation', Teubner writes, is still ‘close to the heart of German law'.^[959] But this conceptual formality, with its roots in the nine­teenth-century ideas just mentioned, is now combined with open-ended­ness and orientation to principle in a synthesis of form and substance that is largely unthinkable in Anglo-American jurisprudence. Intriguingly, however, Teubner's study also shows that Anglo-American reasoning, in foregoing systematization, dogmatism and conceptualism, is not neces­sarily less formal than its German counterpart. In its reliance on rule­orientation and technicality, it is simply formal by other means.

The leading example of conceptual formalism in public law, certainly in relation to balancing, has to be the work of Robert Alexy.^[960] As men­tioned at the end of Chapter 2, Alexy emphatically locates his theory of constitutional rights within ‘the great analytical tradition of conceptual jurisprudence' in German legal thought.^[961] His is a theory heavily invested in conceptual dogmatics,^[962] for which Alexy cites leading nineteenth-cen­tury public lawyers as Laband and von Gerber in support.^[963] Most striking is the fact that Alexy's evident concern is not simply to show that consti­tutional rights balancing might be rational in some generic sense. What is envisaged is not the instrumental rationality of policy reasoning, or even the rule-based rationality of structured legal tests. Rationality, for Alexy, clearly means formal rationality in the logical, exacting Weberian sense. Balancing can and must be rational in the way deductive reasoning is rational.^[964] That specific project is highly revealing. It shows how the ideal of formal legal rationality remains alive, as a powerful benchmark for the assessment of the legitimizing force of legal reasoning. Why go through the trouble of showing balancing can be formally rational, if formal rationality does not retain any purchase? These connections between bal­ancing and formal rationality may not convince all of German constitu­tional rights scholarship, but, significantly, they are taken seriously as a possibility, in a way that is difficult to even imagine within mainstream American constitutional jurisprudence.

Of course, none of these differences are in any way absolute. Some aspects of the interaction between legal formality and informality in German jurisprudence really are to some degree similar to American experiences. The way the proportionality assessment has been structured in a number of heavily dogmatized ‘steps', for example, does look some­what like the American judicial ‘tests'. Here, German legal formality relies upon rules, in addition to systematization and conceptualization. But even here, differences remain. So, for example, American judicial tests are primarily seen as methods to ‘implement' constitutional commands, and not, as proportionality in Germany, as indispensable to uncovering the exact ‘meaning' of those commands. Proportionality, in German jur­isprudence, is conceived of as a principle, not just a test. And, perhaps most revealingly: proportionality is comprehensive and compulsory; it cannot be put aside in favour of some alternative test. To say, then, that German constitutional jurisprudence formalizes its balancing predom­inantly by way of the steps of proportionality analysis in the same way as do American balancing ‘tests', is to read German law through American eyes. Balancing's formality, in German jurisprudence, is much richer and goes much further.

(b) The formal and the substantive: the synthesis tradition in German legal thought

Legal formality, in German constitutional jurisprudence, is always pre­sent, as a permanent background notion. It is not an option or one avail­able strategy among others. Legal reasoning is always somewhat formal, alongside any material elements it may contain. Formality in German law, unlike in US law, cannot be ‘turned off' at will.

But the relationship between legal formality and its opposites in German legal thought is given shape through more complex mecha­nisms than this mere background presence. There is, in particular, a long and much broader tradition within German legal scholarship of deliber­ate attempts at overcoming contradictions and tensions, including those between legal formality and its opposites. In the nineteenth century, the most prominent exponent of this tradition, and in some ways its foun­der, was Friedrich Carl von Savigny. Von Savigny famously attempted to bridge the divide between historical and systematic visions of law. In its fusion of ‘the real and the ideal, the historical and the logical, the organic and the systematic', his conception of ‘Rechtswissenschaft’ ‘promised to resolve conflicts hitherto believed unsolvable’.^[965] In the early twentieth century, Philip Heck and Rudolf Smend both, in very different ways, belonged to this same tradition of synthesis. Heck, in his simultaneous defense of conceptual refinement and interest analysis, and Smend, in his elaboration of durable value constellations, intended to mediate between social change and stability. During the fascist era, Karl Larenz propagated the ‘complete reciprocal penetration and concrete unity of the individual and the whole’, and coined the Orwellian-sounding label of ‘konkret-allgemeine Begriffe’ (‘specific-general concepts’) to capture this idea.^[966] Early discussions of the Basic Law, too, often took this form, relying on strikingly similar imagery. Peter Schneider, for example, writing on “Principles of Constitutional Interpretation” in 1963, saw the constitution of the Basic Law as embodying a ‘logisch-teleologisches Sinngebilde’ (‘a logical-teleological meaningful unity’).^[967] For Martin Kriele, writing in 1967, there was, despite all apparent tensions, no real contradiction between formal and substantive conceptions of the rule of law: ‘Der materiale Rechtsstaat schliefit den formalen ein und begrenzt ihn.’^[968] Unsurprisingly, this attempted synthesis also characterizes Alexy’s work on balancing. ‘Balancing on the facts of a case and univer­salizability’, Alexy postulates, are ‘ not irreconcilable’.^[969]

It is intriguing to note that, for the era of the balancing debates of the late 1950s and early 1960s, these attempts at overcoming juridical anti­nomies appear to have been embedded within a much broader intellectual and social climate that favoured synthesis and reconciliation over con­testation and conflict. In terms of political economy, for example, the Adenauer years were dominated by Ludwig Erhard's conception of the ‘social market economy', which sought to reconcile ‘market freedom and social responsibility'.^[970] In politics, both the Right and Left underwent a process of ‘deradicalization'. Conservatism was being ‘modernized', while the social sphere was undergoing a ‘modernization under a conservative guardianship'.^[971] ‘A strong desire to reduce conflict [...] sometimes going so far as to want to end conflict for good', Jan-Werner Muller has written of this period, ‘has been present in ideologies of the Right and the Left'.^[972] The aim to overcome antinomies may have had deep roots in German legal thinking, but the idea seems to have resonated particularly strongly at exactly the time when the Bundesverfassungsgericht first spoke of the need to balance values and interests.^[973]

(c) Method and substance in German legal thought

One peculiar jurisprudential move often encountered in American legal writing is ‘blame the method'. Mainstream American constitutional jurisprudence is characterized by persistent efforts to link legal meth­odological choices to political or ideological substance, as well as by the equally persistent efforts to contest these same associations. The arche­typical instance of this move is the critique of Lochner as simultaneously excessively formalist and therefore economically conservative. A close second would be the critique of 1950s and 1960s free speech balancing as excessively open-ended and therefore insufficiently protective of speech.

The canonical familiarity of these arguments in the American con­text raises an intriguing question. What role does ‘blaming method' play elsewhere? Are German jurists equally interested in developing and con­testing method/substance associations? And if so, what would be their typical targets? To begin with that last question: one potential target for the elaboration of connections between legal method and substantive evil in the German context, of course, looms larger than any other; the cata­clysm of law under fascism. It seems no other episode could even come close to matching this one in terms of historical profile and continued significance.

The historiography of the method/substance connection as it relates to law under fascism is an extraordinarily complex topic. In the early postwar years, some commentators, including in particular Gustav Radbruch, did attack legal positivism and formalism for having rendered German jurists ‘defenseless and powerless against [...] unlawfulness in the form of a stat­ute'.^[974] But this rather short episode of ‘blaming formalism' remains clearly distinct from experiences in the US, for at least three reasons. First, in the German context, most accusations have in fact been levelled against posi­tivism rather than against formalism. The two concepts obviously overlap, but many of the specific early charges against fascist-era judicial method­ology concerned typically positivist themes, such as the acceptance of the validity of legislation without regard to its moral worth and the rejection of any form of higher law as capable of overriding posited legislative com­mands.^[975] Secondly, after initial identification of positivism/formalism as the primary culprit for Nazi-era injustices, legal historians have shifted towards targeting rather excessive judicial freedom, i.e. legal informality, as primarily responsible. As Vivian Grossswald Curran has written, ‘the myth of judicial positivism in Germany slowly unraveled' and ‘by 1970 numerous German scholars had debunked positivism as a viable culprit theory'. ‘Free law', positivism's perceived antithesis soon took over posi­tivism's place to bear the brunt of the blame.^[976] This ‘post-war about-face', in Grosswald Curran's words, has largely absolved positivism/formalism. Thirdly and lastly, some European writers on the relationship between legal method and fascist injustice have actually identified a positive role for legal formalism. Guido Calabresi, for example, has argued that in Italy, ‘for the scholars opposing fascism, the nineteenth-century self-contained formalistic system became a great weapon' in that it helped conserve lib­eral values in the face of the new ‘Functionalist' fascist ideals.^[977]

As these examples illustrate, formalism has never been as thoroughly associated with substantive injustice or with the dominance of a particular brand of ideology or politics in Europe as it has been in the US. There has, consequently, never been a method/substance connection in Germany of the nature and intensity commonly found in the US. For many different reasons and in many different ways, law under fascism is not ‘Germany's Lochner'.^[978] In comparative terms, then, the formal/substantive relation­ship in German constitutional jurisprudence really is the mirror image of its US counterpart. Not only is the active attribution of substantive implications to formal choices characteristic for US constitutional juris­prudence, but the absence of this connection, the unwillingness or per­haps rather the disinterest to engage in ‘blaming method', is also, in many ways, characteristic for German law.

(d) Counter-currents: ‘materialization' and ‘deformalization'

in German law?

The claim that legal formality remains an omnipresent background factor in German constitutional jurisprudence needs to confront one obvious and powerful counter-argument: the observation voiced by numerous leading German theorists that their legal order has undergone a radi­cal ‘materialization in the course of the twentieth century. In Bernard Schlink's summary: ‘[i]t has often been observed that German law and legal doctrine have, throughout this century, displayed a tendency to turn from formal to material concepts, and from specific to general terms'.^[979] The work of one of the leading writers making this argument in the 1950s, Ernst Forsthoff, was discussed in Chapter 3. For Forsthoff, the ‘defor­malization' (‘Entformalisierung’ ) of constitutional law signified noth­ing less than ‘the unfolding of the judiciary-State' and the ‘dissolution of the Constitution'.^[980] And for Forsthoff, as for many other observers of ‘materialization’, judicial balancing was the prime manifestation of this tendency.

A strong case can be made, however, that materialization has not equalled deformalization in German jurisprudence. In part, this assertion can rest on the many indications of formal elements in German constitu­tional jurisprudence outlined earlier; from ‘system thinking' to deduc­tion and attachment to conceptual rigour.^[981] But comparative analysis can provide further support. One notable dialogue between Duncan Kennedy and Rudolf Wietholter is particular revealing for the divergence between German and American understandings of materialization. As Kennedy notes, much of Wietholter's analysis of materialization in German law initially develops very similar themes to those found in American Critical Legal Studies, in particular ‘the failure, death or exhaustion of legal rea­son',¹⁶³ and the loss of formal rationality in law. At the same time, however, Wietholter's initial, apparent ‘pure pragmatism, in the mold of William James' is combined with a ‘faith in and hope for law' that, to an American, appears ‘paradoxical'.¹⁶⁴ In short, Kennedy writes, there appears to be ‘a general absence in Western Europe of the particular kind of radical­ized critique of law represented by Legal Realism and then Critical Legal Studies in the US'.¹⁶⁵

As mentioned in Chapter 2, though, the critiques offered by the Freirecht scholars in Germany were at least as radical as anything sug­gested in the US in the early twentieth century.¹⁶⁶ The real question therefore rather seems to be: why did such radical critiques not have the same lasting impact in Germany as they had in the US? Part of the answer to this puzzle has also already been suggested; the fact that American judges had to decide intensely political questions regard­ing the limitation of public power at a time when such issues rarely if ever came before the judiciaries of Western Europe. As a result, legal method came under early strains in the US that were not as acutely felt elsewhere.¹⁶⁷ Kennedy's response also suggests another explanation. This is the possibility that European experiences of fascism and com­munism have instilled an attitude among European lawyers that makes American-style radical anti-rationalism, and anti-formalism, simply ‘too painful even to listen to'.¹⁶⁸ This last point may have a degree of truth to it, though it must be noted that the Freirecht-critique seems to

the fact that both these fundamentally different [formal and material] methods of legal interpretation and application coexist, without any logical relationship being present between them; a logical relationship which would be impossible in any event.')

¹⁶³ Kennedy (1985), p. 512.

¹⁶⁴ Ibid., p. 516. ¹⁶⁵ Ibid., p. 518.

¹⁶⁶ See Chapter 2, Section C.3. Another example is the work of Rene Demogue in France, whose work has been rejected as embodying a ‘nihilisme juridique. See, e.g., Jamin (2006); Kennedy & Belleau (2006).

¹⁶⁷ See Chapter 2, Sections B.5 and C.

¹⁶⁸ Kennedy (2011), p. 522.

have been largely a spent force already before the atrocities of the Second World War.^[982]

A more comprehensive answer to this puzzle of European/US diffe­rence, including discussion of the very real possibility that American legal thought is the atypical case in need of explanation, has to remain outside the scope of this book. The point I have sought to make in this section is simply that the oft-voiced observation that German law, like all Western- European law, has ‘materialized', does not fundamentally undermine the claim that it continues to rely on a high degree of background legal for­mality that sustains even the more seemingly open-ended balancing exer­cises of the Bundesverfassungsgericht and its European sister courts.

E.