The formal: perfection and limitation

Constitutional rights balancing in German and European jurisprudence is persistently depicted by American observers as a radically open-ended and informal practice, at odds with the formalist heritage of European legal culture.

At the heart of the concept of legal formality lies the idea of juridical autonomy. Formality, as Laura Kalman puts it in admirable defiance of lexicographical strictures, simply means ‘autonomousness’.^[834] This idea of autonomy, in turn, is commonly equated with the notion of constraint.^[835] Autonomy for the juridical then comes to evoke the image of a bounded legal sphere; a closed domain, strictly separated from the outside world.^[836] But juridical autonomy, and thus legal formality, can also be read in a broader sense, to refer to any instance where legal ideas or concepts are thought to exercise any kind of independent force. That independent - autonomous - force, in turn, need not necessarily come in the shape of constraint, understood as limitation. It can also manifest itself in a more positive way, as a form of compulsion - the compulsion to maximize and intensify, to make the constitutional legal order, in different senses, the best it can be. This is the compelling force of a constitutional legal perfectionism.

1. Constitutional legal perfectionism

German constitutional legal discourse of the 1950s and 1960s is strik­ing for its incessant references to the ideals of the expansion, intensifi­cation and other forms of what could, at least intuitively, be called the betterment of the constitutional order. Typically, these references employ the vocabulary of ‘perfection'.

There is some way to go, however, between identifying instances of perfectionist rhetoric, however pervasive, to the elaboration of ‘perfec­tionism' as a conceptual category appropriate to German constitutional jurisprudence.^[840] This section is concerned with making the argument for that transition. It derives such a conceptual category by way of compara­tive analysis that draws from the broad contours of American scholarly debates in which constitutional ‘perfectionism' figures as an explicit label.^[841] That label, in those discussions, does not come with anything approaching a comprehensive or even internally coherent definition of ‘perfection' in constitutional law. But the debates do reveal a number of recurrent and related characteristics of what could be called a ‘perfectionist' style in con­stitutional jurisprudence. These may be summarized as follows.

(1) Constitutional legal perfectionism is aspirational. It exhorts legal actors to honour their legal order's ‘aspirational principles' rather than merely follow ‘historical practices and concrete original understanding'.^[842]

(2) Perfectionism is substantive. References to the ‘substantive' in law are notoriously vague, but what is intended here is the (doubly negative) idea that the function of constitutional law and courts is not limited to merely securing a procedural framework for effective self-government.^[843]

(3) Perfectionism is constructivist, in that it emphasizes the virtues of coherence over more localized forms of reasoning and interpretation.^[844]

(4) Perfectionism strives for maximally intense rights protection.^[845]

(5) Perfectionism aims for maximally comprehensive coverage of societal domains through law and legal processes.^[846] (6) Perfectionism demands maximal effectiveness in rights protection, by way of a ‘perfect' system of remedies.

These characteristics, although derived from a debate in American con­stitutional legal theory, show a striking degree of overlap with the compo­nents of the German vision of the ‘perfect constitutional order' discussed in Chapter 3. ‘Material constitutionalism' was an overtly substantive, value-based approach to constitutional jurisprudence. The ‘complete' constitutional order turned on the idea that the value system enacted in the Basic Law ‘should lay claim to an absolute validity extending to all spheres of social life'.^[848] And the ‘perfect fit' constitution demanded an as- close-as-possible congruence between the abstract meaning of constitu­tional rights provisions and their effectuation in concrete cases.

The discourse of balancing, as was also shown in Chapter 3, is the most prominent manifestation of this German constitutional legal perfection­ism. There is a direct link between Smend's material (substantive) consti­tutionalism and the value balancing of the Luth court. The extension of the sphere of rights protection to the private sphere, also initiated in Luth, relied on value- and interest-balancing as a key instrument for avoiding inconsistencies in the operation of rights protection in this new set-up, with its vastly increased potential for conflict. ‘Perfect fit' constitutional­ism found expressions in the conception of constitutional interpretation as the ‘actualization' of rights clauses and in the principle of the ‘optimi­zation' of constitutional rights and values.^[849]

One illuminating example of the influence of this idea of ‘optimiza­tion' and its relation to balancing, not yet discussed because it fell out­side the time frame adopted in Chapter 3, is Robert Alexy's seminal Theorie der Grundrechte, of 1986. In that book and in later work, Alexy presents fundamental rights norms, understood as ‘principles', in terms of ‘Optimierungsgebote' (‘optimization requirements' or, more strik­ingly, ‘injunctions').

2. Anti-perfectionism in US constitutional jurisprudence: formality as constraint and limitation

If German constitutional jurisprudence can be seen as perfection-seeking, at least on the American definitional fragments adopted earlier, American constitutional jurisprudence itself is, on these same criteria, emphatically non- or even anti-perfectionist. Dominant strands within American con­stitutional legal thought and practice manifest an underlying negative, limiting, form of constitutional legalism, rather than a desire to con­struct any kind of comprehensive or perfect constitutional legal order. It is important to note that the claim here is not that this anti-perfectionism in American jurisprudence is related to balancing in any similar way as perfectionism is in the German setting.^[852] The purpose of this discussion is rather to examine the extent to which constitutional perfectionism could be in any way distinctive for German theory and practice, by way of a con­trast with experiences in the US. This will be a stepping stone for the main project of relating this distinctive German idea, and balancing as one of its main expressions, to the topic of legal formality.

(a) Facets of American constitutional anti-perfectionism Examples of anti-perfectionist tendencies in American constitutional juris­prudence abound.

A more circumscribed search among the materials discussed in Chapter 4 reveals some more specific examples. It is striking, first of all, how many of the principal figures in the history of first amendment law had unambitious, or even downright pessimistic, views of what constitu­tional rights adjudication might be able to accomplish. Zechariah Chafee, for instance, one of the founders of the modern tradition of free speech protection, was said to be ‘acutely aware of the limitations of law and the legal process', and to have felt strongly that law ‘must be tolerant of many evils that morality condemns'.^[857] Judge Learned Hand, who advocated the definitional alternative to ‘clear and present danger', and Justice Black, who stridently opposed balancing on the Supreme Court, espoused sim­ilarly limited conceptions of what judges could, and legitimately should, do.^[858] So too, of course, did Justices Frankfurter and Harlan, who advocated balancing on the Supreme Court, in part precisely on this ground.^[859]

Some of this jurisprudential reticence can be traced to the influence of the two main traditions in first amendment thinking, which may be labelled the ‘common law' and the ‘principled foundations' approaches.^[860] In the first of these two, first amendment adjudication is viewed through a classic common law lens.

In the ‘principled foundations' tradition, on the other hand, first amendment adjudication is approached by way of the construction of general theories concerning the value or values that the first amend­ment is supposed to protect, or the kinds of harm it is meant to guard against. The main early representatives of this tradition were Alexander Meiklejohn and Thomas Emerson, both discussed earlier as part of the definitional tradition in American free speech law.^[861] The ‘principled foundations' approach became especially prominent during the 1970s and 1980s.^[862] ‘Principled foundations' first amendment thinking is also likely to be anti-perfectionist, in several ways. For one, these theories often focus on one single fundamental value underlying the freedom of expression. In that way, they obviously limit the possibilities for the con­sideration of alternative values and interests in order to achieve a more comprehensive appraisal.^[863] But more generally, any approach seeking to define the freedom of speech will treat the question of the coverage of first amendment protection to some extent in a rule-like, categori­cal and therefore exclusionary fashion. On such views, cases are either within or outside the area covered by the amendment, depending on their proximity to the core(s) of its underlying value(s).^[864] The resulting categorical or rule-like conception of first amendment doctrine is often seen as integral to its ability to adequately protect the freedom of indi­viduals expressing unpopular opinions against the vagaries of public sentiment.^[865] But it comes with an important corollary in terms of the perfectionism / anti-perfectionism distinction. The ‘rule-like nature of the first amendment', as Frederick Schauer has written, shows that it ‘is not the reflection of a society's highest aspirations, but rather of its fears'. It is ‘the pessimistic and necessary manifestation of the fact that, in prac­tice, neither a population nor its authoritative decisionmakers can even approach their society's most ideal theoretical aspirations'.^[866] The result, in Schauer's striking terminology, is a first amendment that is, appropri­ately, ‘second-best '.^[867]

(b) Anti-perfectionism and legal formality

A major theme underlying and unifying these different strands of anti­perfectionism in US constitutional jurisprudence is the idea of legal formality. In a variety of ways, these strands are expressive of a basic equa­tion: anti-perfectionism = formality = constraint and limitation. Legal formality and anti-perfectionism both express and serve to uphold law's autonomy. They do so by strictly enforcing the boundaries of the juridi­cal sphere. This is true, in different ways, for ‘originalism', ‘clause-bound' reasoning, or the denial of horizontal effect. It is especially visible in the more general way formality is interpreted as ‘ruleness '.^[868] Decision making according to rule blocks consideration of ‘the felt necessities of particular cases' - of ‘factors that a sensitive decisionmaker would otherwise take into account'.^[869] For such rule-based conceptions of adjudication, obtain­ing ‘the “perfect” answer is nice - but it is just one of a number of compet­ing values'.^[870]

Legal formality and constraint in the American context, then, are seen as essentially connected. Formality means juridical constraint; and con­straint in turn requires legal formality for its operationalization. This intimate relationship sets up a fascinating question of comparative law. If American anti-perfectionism is, in so many ways, supported by and reflective of formalizing tendencies, is German constitutional legal per­fectionism anti-formalizing in any comparable way? That, certainly, is the prevailing American view, as discussed in the Introduction to this book. But there is an intriguing alternative. And that is the idea that German perfectionism might instead be formal, in a way analogous to the formal­ity of American anti-perfectionism. If that were the case, then the mean­ing of the discourse of balancing, as a key component and manifestation of this German perfectionism, might also be revealed as formal in a sense difficult to square with prevalent (American) conceptions.

3. Perfectionism and balancing in German constitutional jurisprudence: formality as compulsion and optimization

(a) Embedded informality

At first sight, the idea that perfectionism and balancing might be related to formalism is counterintuitive. After all, important elements of perfec­tionist constitutional legal thought and of rights balancing specifically, such as maximal particularity and reliance on open-ended constitutional norms capable of constitutionalizing large areas of social life, seem radic­ally at odds with core dimensions of legal formality.

And yet, manifestations of formalizing tendencies are not all that dif­ficult to find. German balancing, and German constitutional legal per­fectionism more broadly, are formalizing, first of all, in they way they combine maximal particularity with case-transcending, stabilizing elements. Among the most important of these stabilizing elements are various conceptions of a ‘value system' within the Basic Law and the view of the Basic Law as a ‘logical-teleological whole'.^[871] Another important case-transcending element in the Bundesverfassungsgericht's approach is its simultaneous invocation of both interest-balancing and value-bal­ancing - what German commentators call ‘value balancing in the indi­vidual case'. These specific elements are, moreover, embedded within a scholarly culture that continuously makes explicit and implicit efforts to formalize judicial technique, by way of the ‘Verwissenschaftlichung’ of legal doctrine.^[872] These elements support at least an initial case that con­stitutional rights balancing might be something more - something rather more constraining, especially - than mere ‘Khadi '-like, ad hoc, maximal particularism.

(b) Formality as optimization: of ‘baselines' and the ‘fully realized constitutional order'

Uncovering the full extent of the formalizing potential of constitutional perfectionism and balancing in German jurisprudence, though, requires going beyond these instances where particularity and legal informality are simply embedded among formalizing supports. It demands instead a more radical reappraisal of the character of legal formality itself, starting from its basic definition as faith in, and commitment to, the possibility of juridical autonomy. There are two ways in which this idea of autonomy may produce an overly narrow understanding of the ways in which law could be formal.

First, faith in juridical autonomy is, at heart, a form of belief in the agency of legal ideas; a belief that legal doctrines, concepts, theories, etc. can exercise some kind of independent force. That independent force has traditionally been conceived of in constraining, limiting terms. Legal for­mality then stands for the idea that legal decision makers are prevented from doing certain things; from taking into account factors they would otherwise have considered, for example. But a similar sense of constraint could also come from an obligation to do certain things. Legal formality would then mean compulsion instead of limitation. It would compel legal actors to take all relevant factors into account, for example, obliging them to take seriously the ‘maximal' in ‘maximal particularity'.

The idea of autonomy may also be misleading in a second way, in that it tends to suggest some form of bounded, limited domain for law. But the autonomous, independent force of the juridical could also find expres­sion in the form of a totalizing pretension - a mode of thinking in which all other societal domains or modes of knowledge are first framed by law, before they can assert any remaining independent identity.

Probably the clearest illustration of this alternative reading of legal formality can be found in the operation of the idea of ‘optimization' in German constitutional jurisprudence.^[873] The mandatory and totalizing qualities of this idea can be brought out in several related senses.

First, optimization as a principle in German constitutional juris­prudence has distinctive ‘rule-like' qualities. By way of illustration: Alexy's ‘law of balancing' referred to earlier and his framing of rights as ‘Optimierungsgebote (‘injunctions to optimize'), are clear expressions of compulsion. So too, albeit to a lesser extent, are older concepts such as ‘praktische Konkordanz’, or the presumption in favour of individual rights, which is now largely discarded but was earlier fervently discussed. These may sound like pragmatic and open-ended concepts, but they come with powerful preconceptions of the kinds of ‘optimal' solutions to be achieved.^[874] The image of constitutional justice that they convey is not that of a pragmatic tweaking of interests, but of a finely calibrated balance, perched on the one narrow ridge where all values and interests in play can receive their exact due.

But optimization is also formal in a more complex sense, analogous to a leading tradition of interpreting the formality of the Lochner line of deci­sions in American constitutional law.^[875] Lochner and its canonical, albeit troubled, association with formality and formalism in American juris­prudence have already been discussed, in Chapter 2. Lochner's formality, in one major line of thinking, lay in the Supreme Court's adherence to some particular conception of neutrality.^[876] It was the Court's ‘yearning to believe in an idealized oasis of neutrality' that allegedly informed its rejection of regulatory measures such as limitations on working hours for bakers.^[877] Views differ as to the precise nature of this conception of neutrality and its jurisprudential implementation. Some interpretations emphasize the neutrality of the State in terms of the idealized liberal ‘night-watchman’ State of nineteenth-century political thought. Others emphasize the neutrality of ‘self-executing and prepolitical' markets, and others still the neutrality of a common law ‘state of nature'.^[878] This neutrality was implemented by way of a distinction between (legitimate) intervention for the general good and (illegitimate) ‘class legislation', or through an array of ‘fixed categories of legitimate police power [derived from] the common law of nuisance'.^[879] In Cass Sunstein's hugely influ­ential reading, the Court took ‘the existing distribution of wealth and entitlements' as a neutral ‘baseline from which the constitutionality of governmental action would be judged.^[880] ‘[M]arket ordering under the common law' was, he wrote, ‘a part of nature rather than a legal con­struct'.^[881] Sunstein's ‘baseline' notion and his depiction of common law doctrines as ‘part of nature', rather than as legal constructs, have been forcefully criticized for being anachronistic.^[882] But in broader terms, his reading of Lochner as emblematic for a categorical distinction between (some forms of) intervention and (some forms of) maintenance of the status quo clearly resonates with more historically grounded work. On this reading, governmental action, for example to enhance the working conditions of the Lochner bakers, requires special justification in a way that governmental inaction would not.

This comparison with Lochner-style formality in its dominant, received understanding (still the archetype of legal formality in American law), brings out parallels with the formal character of opti­mization in German constitutional jurisprudence. Lochners neutrality, its status quo, or its ‘baseline', has its counterpart in the German vision of the fully realized optimum of constitutional rights protection. Where in Lochner formalism, any deviation from the status quo is subject to a high burden of justification, so in the German context is any detrac­tion from fundamental rights' ‘full effectiveness', in terms of scope and intensity.^[883] The way that in Lochner-type reasoning, existing common law arrangements or patterns of distribution are ‘natural' or uncontro- versial has its equivalent in the German view of the full effectuation of the value order of the Basic Law as a natural, uncontroversial state of affairs.

The quest for neutrality and ‘naturalness' in Lochner jurisprudence has been read as part of a (formalist) strategy of de-politicization. The Lochner-court's doctrinal categories and modes of justification, on this view, served to keep judicial ideological preferences out of the adjudication process. Such attempts at de-politicization through legal form are generally treated with suspicion and are often seen as incor­porating an individualist bias.^[884] Intriguingly, a very similar form of de­politicization can be observed in the early Bundesverfassungsgericht's pursuit of optimization and maximization. That project, though, as I will argue below in Section E, was not so much directed at keeping ide­ology out of constitutional adjudication, but at enforcing a uniform, all­encompassing, semi-official ideology - a public ideology that integrated democracy, social welfare and individual rights. And the Court's bal­ancing played a central role in the judicial effectuation and safeguard­ing of this judicial synthesis between the main currents in early postwar German political thought.^[885]

C.