The jurisprudence of interests: G e ny, Heck, Pound

1. Introduction

This section traces the intellectual history of the rise of balancing of inter­ests in German and American jurisprudence during the first decades of the twentieth century.

The focus in this section is on the German Interessenjurisprudenz and Roscoe Pound’s Sociological Jurisprudence. As between these two move­ments, there is very little direct acknowledgment of influence. The German scholars did not cite Holmes or Pound, and Pound’s work contains only very few references to Heck and other Interessenjurisprudenz scholars. They were, as one reviewer of the seminal 1948 translation of their work put it, among those foreign authors ‘almost completely ignored in English and American jurisprudence’.^[207] By contrast, Pound seems to have relied heavily on the work of Francois Geny.^[208] Because of this influence, and

because Geny was in fact one of the very first, perhaps even the first, major European jurist to invoke language and ideas associated with balancing, this section begins with a short description of his work.^[209]

2. Balancing and the critique of classical orthodoxy in France: libre recherche scientifique and juridical modesty

European legal thinkers were preoccupied at the turn of the nineteenth century with the question of ‘gap-filling' - making sure written law could maintain its coherent and complete character in the face of new problems.

In addition to these well-known general themes of the critique of con­ceptualism and formalism, Geny specifically invokes balancing language where he sets out his method of free scientific research. In a section on ‘The Principle of Equilibrium of Interests’,¹²⁷ Geny writes: the science of administrating the law could not do better than frankly to adopt, where the formal sources of law are silent, this method: to seek the solution of all legal questions, which necessarily grow out of the conflict of various interests, by means of an accurate estimating of the relative importance and a judicious comparison of all the interests involved, with a view to balancing them against each other in conformity with the inter­ests of society.^[215]

Given these general critical themes and this specific methodological proposal, what position does Geny’s work occupy in the genealogy of balancing?

It is important to note, first of all, that Geny sought the examples for the application of his new method in private law.

Secondly, within this private law context, there clearly was a distinc­tive substantive edge to Geny’s methodological critique and proposals.¹³² Geny can be situated among a group of contemporaries later labelled ‘ les juristes inquiets’ or ‘les vigiles’: a number of scholars concerned to adapt private law legal doctrines and techniques to rapidly evolving social conditions.¹³³ What Geny and these other writers were interested in was mainly the safeguarding of the ‘ edifice juridique’ (‘the overall structural integrity of the classical system') in the face of social pressures.^[219] Their aim was not so much social ‘reform', and certainly not socialist reform,^[220] but rather to ‘preserve the existing social equilibrium by adapting, and in some cases abandoning, legal classicism'.^[221]

These last quotations lead to a third observation which is that, although these methodological innovations did have a substantive, or even polit­ical, edge to them, these implications were at the same time rather limited in scope and ambition.

Finally, all three of the foregoing observations can be related to the topic of balancing.

Balancing of interests then, in Geny's work, appears as a relatively mod­est component of a relatively modest project of renewal in legal method. As will be seen later, this is in stark contrast with the way jurists in America, where Geny was widely admired, would frame their own proposals only a few years later.

3. The jurisprudence of interests in Germany: the Interessenjurisprudenz as ‘a pure theory of method'

In Germany, ‘balancing of interests' was the principal theme of the School of Interessenjurisprudenz, of which Philipp Heck, Ernst Stampe, Max Rumelin, Heinrich Stoll and Rudolf Muller-Erzbach were the main fig­ures. As many of these figures taught at the University of Tubingen, the inner core of the Interessenjurisprudenz movement is sometimes also called the ‘Tubingen School'.^[234] Here, I focus on Philipp Heck, whose influence on the science of legal method, Karl Larenz has said, ‘is almost impossible to overestimate'.^[235]

The School of Interessenjurisprudenz has to be situated as an extension of von Jhering's emphasis on teleology in legal method, and as a critique of both the orthodoxy of the Begriffsjurisprudenz and of the contempora­neous, more radical attacks on conceptual jurisprudence voiced within the so-called ‘Freirechtsschule '.^[236] For the Interessenjurisprudenz, judicial freedom of decision was, and had to remain, strictly limited.^[237] Heck's favourite image was of the judge as a ‘denkender Gehorsam, a judge who approaches the law thoughtfully and obediently.^[238] It is significant that the first mention of the term Interessenjurisprudenz is in an article by Heck in 1905 of which the full title is ‘Interessenjurisprudenz und Gesetzestreue ' (‘The Jurisprudence of Interests and Obedience to the Law').

(a) ‘Gap-filling' through ‘sensible weighing'

As for G eny, the point of departure for the German Interessenjurisprudenz was the problem of ‘gap-filling' in law.^[239] Against the ‘dogma of the gap­lessness of the legal order' and its associated method of ‘inversion', the critics proposed ‘sensible lawfinding by judges' through ‘social weighing' and ‘comparative valuation of colliding interests', Ernst Stampe wrote in 1905.^[240] Heck even defined Interessenjurisprudenz as ‘the methodical use of the analysis of interests in order to fill gaps in the law'.^[241]

In order to distinguish his own project from von Jhering's teleological revolution and to carve out a distinct place for the Interessenjurisprudenz, Heck made a distinction between what he called the ‘genetic' and the ‘pro­ductive' theories of interests. The first was the recognition that diverse interests lay at the basis of existing legal rules. This was the idea already developed by von Jhering. The ‘productive' theory of interests, on the other hand, turned on the active use of the analysis of interests in the judicial development of the law. It was this theory that Heck felt was his own innovation.^[242]

The Interessenjurisprudenz scholars propagated a humble image of what they were trying to do. Their primary concern was to offer practical guidance to judges on how to make a ‘vernunftige Interessenabwagunga reasonable, sensible balancing of interests.^[243] They saw their work as a con­tribution to ‘the practical art of decision-making’, rather than as a ‘phi­losophy of law’.^[244] As Franz Wieacker has noted, it was precisely because of this ‘unassuming stance’ that the jurisprudence of interests was able to enlist ‘a major following among both writers and practitioners’.^[245]

Both the elements of ‘balancing’, or ‘weighing’, and of ‘interests’ were important in this practical contribution. The idea of weighing up two competing claims was the practical embodiment of the suggestion that what judges really should be doing was to give expression to precisely such trade-offs already contained in legislation. ‘Our starting-point’, Heck wrote, ‘is the consideration that the legislator intends to delimit human interests according to value judgments, and that it is the function of the judge to effectuate this ultimate aim by his decisions of individual cases’.^[246] Whenever these original value judgments do not explicitly cover a given case, ‘the judge must proceed to fill the gap by weighing the inter­ests concerned’.^[247] As for ‘interests’, Heck favoured this concept over that of alternatives such as ‘Rechtsgut ’ (‘legally protected good or interest’) and ‘Wert ’ (‘value’) because he thought it permitted ‘the finest dissection’ in conceptual terms, and because of its clear recognition in social life and everyday parlance.^[248]

(b) Autonomy and neutrality

Of paramount importance to the Interessenjurisprudenz scholars was the affirmation of the strict neutrality of their methods. Heck wrote:

The method of the Jurisprudence of Interests derives its principles solely from the experience and needs of legal research. It is not based on any philosophy nor modelled after any of the other sciences. This is what I term ‘juridical autonomy’,^[249]

This assertion of neutrality, or autonomy, is a dominant theme in the writings of the Interessenjurisprudenz scholars. Their jurisprudence was a ‘pure theory of method', ‘not a theory of substantive values', and ‘entirely independent of any ideology'.^[250] In this sense, the school of Interessenjurisprudenz remained clearly within the traditional European paradigm of ‘strictly juristic method'. ^[251] As Philipp Heck noted in 1932, in words that would soon take on a rather more ominous hue:

We do not dream of dictating to the legal community which interests it must protect in preference to others. We want to serve all the interests which the legal community holds worthy of protection at a given time.^[252]

In part, the Interessenjurisprudenz took its valuations from the same naturalistic perspective that Geny and his contemporaries invoked in France.^[253] But, more than for these French writers, Heck's main aim was in fact to bring out valuations already inherent in the body of the law. This meant reliance on ‘the radiating effect of legislative value judgments' (the ‘Fernwirkunggesetzlicher Werturteile’) laid down by the legislator for other cases to which the situation under review could be seen as in some way analogous.^[254]

This asserted neutrality assumed special significance in the context of the Rechtserneuerung (‘legal renewal') under National Socialism after 1933. Heck thought that his method would be ideally suited to support the implementation of the new National-Socialist ideals into German law. He presented his case in a 1936 article ‘Die Interessenjurisprudenz und ihre neuen Gegner (‘The Jurisprudence of Interests and its New Enemies').^[255] By 1936, however, the Jurisprudence of Interests had already drawn fire from rival scholars, hence the defensive title of Heck's article. The main charge of critics such as Julius Binder was that Heck's work was tainted by the ideology of classical liberal individualism.¹⁷¹ As Bernd Ruthers sum­marized in his seminal Die unbegrenzte Auslegung, Heck's critics thought that ‘the representatives of the Jurisprudence of Interests would not, as children of nineteenth-century liberal thought, be able to see the relation­ship between individual and collective interests in any other way than as in a conflict calling for an equalization'.^[256] The whole idea of individual interests as opposed to social or collective interest was alien to the new National-Socialist ideology.^[257]

Insistence on the neutrality of this method was of no help. Neutrality itself was seen as ‘characteristic for a bygone era'.^[258] This is why in his 1936 article, Heck, although careful to maintain his support for the separation between philosophy and legal method he had invested so much in, did suggest that he had always seen individual interests as worthy of protec­tion only because of the fact that they were simultaneously social inter­ests.^[259] This substantive adjustment may have amounted to only a limited concession in Heck's own view, but it was a radical reversion when com­pared to the classical liberal position Geny and others had taken earlier on exactly the same issue. Even this could not, though, much to Heck's evident regret, save his beloved method.

4. Balancing of interests in the US: Roscoe Pound's Sociological Jurisprudence

(a) Degrees and interconnectedness

The genesis of balancing of interests in the US can to a large extent be told through the figures of Oliver Wendell Holmes and Roscoe Pound. For Holmes, the centrality of balancing came from an acute appreciation of the many new kinds of interdependence and conflict - between eco­nomic competitors, between capital and labour, etc. - that characterized industrial society. These new configurations precluded traditional all-or- nothing-approaches and called for what Holmes termed ‘distinctions of degree'.^[260] As early as 1881, for example, in his book The Common Law, Holmes found ‘the absolute protection of property... hardly consistent with the requirements of modern business'.^[261] The same realization, that legal claims in conflict permitted only decisions based on distinctions of

balancing’s beginnings: concepts and interests 65 degree, led Holmes to formulate, in an 1894 essay on labour law, what Morton Horwitz has called the first ‘fully articulated balancing test’ in American legal theory.^[262]

Holmes was not part of any social progressive movement and his emphasis on the need to balance interests was related to his critique of the inadequacies of prevalent legal methods. It was certainly not part of any substantive program for social reform.^[263] That ‘balancing of interests’ would later be put to this use is foreshadowed in another of the earliest explicit references to balancing in American legal literature. This refer­ence is emblematic for many later discussions to such an extent that it is worthwhile to discuss it at some length.

In an 1895 case comment in the Yale Law Journal, an anonymous com­mentator criticized an 1894 Illinois decision in which the State Supreme Court struck down a law forbidding women in factories to work more than eight hours a day.^[264] This decision was representative of numerous state and federal decisions of the period that similarly invoked the right to freedom of contract in order to strike down protective legislation.^[265] The Illinois court held that protecting the women themselves could not justify the legislation and that protection of anyone else or of the public interest was not at issue. For the anonymous reviewer, however, the case did not turn on protection of the women themselves, but on protecting society against ‘the harm that may be entailed on posterity [a] weakness that may strike at the very life of the State’.^[266] This public or social harm was evident, the commentator wrote, from lower birth rates for factory workers. The reviewer concluded: ‘The whole question seems to involve a balancing of public policy over against the right to contract, and the court has decided in favor of the latter’.¹⁸³

The alleged laissez-faire constitutionalism of the freedom of contract doctrine, on stark display in this Illinois decision and a range of other decisions leading up to Justice Peckham’s majority opinion in Lochner v. New York at the Supreme Court in 1905, was Roscoe Pound’s main object of attack in the first decades of the twentieth century, in particu­lar in his articles Mechanical Jurisprudence and Liberty of Contract. Part

of this attack echoed the theme of the anonymous Comment just cited: if courts would only look at social reality and take all the facts into con­sideration, they could not possibly come to the conclusions they actually reached. Attention to actual social data - on birth rates for female factory workers in the Illinois case, for example, or on the quality of bread pro­duced by bakers working overly long hours in Lochner - would make it impossible to hold, as courts regularly did, that ‘the interest of the public' was not ‘in the slightest degree affected' by the practices social legislation sought to outlaw.^[267] This theme of attention to real world consequences of judicial rulings led Pound to issue his famous call for a ‘Sociological Jurisprudence'. He described this project as a ‘movement for the adjust­ment of principles and doctrines to the human conditions they are to gov­ern rather than to assumed first principles'.^[268]

(b) Rights, policies, interests

For Roscoe Pound, Sociological Jurisprudence was intimately tied up with both a ‘new' worldview and a related ‘new' ideal of justice. The new world­view sought to replace ‘an abstract and unreal theory of State omnipo­tence on the one hand, and an atomistic and artificial view of individual independence on the other' with a realistic assessment of ‘the facts of the world with its innumerable bonds of association'.^[269] This awareness of increased interdependence had to be combined with a transition towards a new form of justice. For the latter, Pound set out the required transfor­mation in his 1912 paper Social Justice and Legal Justice:

It has been said that our legal idea of justice is well stated in Spencer's formula: ‘The liberty of each limited only by the like liberties of all.' Compare this with Ward's formula of social justice: the satisfaction of everyone’s wants so far as they are not outweighed by others' wants.^[270]

The theme of ‘balancing of interests' that Pound was to develop in the 1920s has to be seen fully in function of these ideas on social justice and his project of progressive reform.^[271] The bulk of these views are set out in his 1921 paper ‘A Theory of Social Interests'.^[272] That article begins with

balancing’s beginnings: concepts and interests 67

Pound's critique of the individualism of classical method. ‘From the sev­enteenth century to the end of the nineteenth’, he wrote, ‘juristic theory sought to state all interests in terms of individual natural rights’.^[273] During this time, ‘social interests were pushed into the background’. ^[274] 'This meant that while ‘the books are full of schemes of natural rights [...] there are no adequate schemes of public policies’.^[275] At the time of writing, however, in Pound’s view ‘pressure of new social interests’ was giving courts pause and leading them to cast doubt upon their traditional methods.¹⁹³

These new difficulties, and the way the defects of the traditional approach played out in Pound’s view can be illustrated on the basis of the Illinois decision and the Comment cited earlier. The court’s decision, on this view, was evidently defective in that it took into account only the individual ‘natural right of freedom of contract’, entirely neglecting any possible effect on other individuals or on society at large. The reviewer’s real-life-aware, data-sensitive, balancing approach was, from this per­spective, an important step forward. But even the suggested alternative in the Comment still had an important weakness. Merely replacing categor­ical analysis of the outer limits of natural rights by a relative or relational approach turning on weighing or balancing was not enough. Because, Pound wrote, even if a court were to engage in ‘balancing’, framing the relevant conflict as between an individual right on the one hand and a mere social policy on the other was liable to determine the outcome in advance.¹⁹⁴ It was in this context that Pound formulated a crucial warn­ing, often repeated later: ‘when it comes to weighing or valuing claims [.] we must be careful to compare them on the same plane’.¹⁹⁵ This ‘same plane’ Roscoe Pound found in the concept of ‘interests’.

The central role that ‘balancing of interests’ played in Progressive jur­isprudence can now be assessed. On the one hand, balancing was the expression of the new worldview, already touched upon by Holmes, which emphasized interdependence over absolutism and individualism, and questions of degree over categorical boundaries. On the other hand, the concept of interests was instrumental in mediating between individual ‘rights’, which had always been judicially protected, and ‘policies’, which had not. The concept of interests allowed for evaluation and comparison to be carried out ‘on the same plane’. This it achieved primarily through

a revaluation of the social and a corresponding ‘relativization' of the individual.

The analysis in A Survey of Social Interests and in Pound's other writ­ings of the same time are revealing for his instrumental use of the new conception of balancing of interests. Once the theme of balancing was introduced, Pound had little interest in elaborating its structure or nature. Pound's papers contain little or no helpful guidance for judges on how to balance.^[276] Much more important for him was his project of drawing attention to the multitude of important ‘social interests' and to their neglected weight in contemporary case law; the elaboration of ‘ade­quate schemes of public policies' as he had put it. Once these interests were ‘listed, labeled, classified, and illustrated', Edmond Cahn observed later, ‘Pound and his school seem ready to adjourn'.^[277] ‘In short', Cahn concluded, ‘the Anglo-Saxon school stands halted at the threshold of the theory of values (axiology). Meanwhile, in Germany, the preoccupation of the Interessenjurisprudenz was less with listing and taxonomy and more with the techniques of adjudication'.^[278]

Pound was certainly no radical reformer, and he became less enam­oured with Progressive ideas later in his career. But because the legal orthodoxy he was concerned with in this early period - constitutional adjudication, primarily in the field of health and safety regulation - was, fairly uniformly, so much more socially conservative than what he and other Progressives desired, it was unavoidable that the call for a more reality- or society-aware sociological jurisprudence would be read as a call for a more social jurisprudence. In this sense, Pound saw balancing of interests as a way to make ‘inroads into [...] individualism', in just the way the old equity jurisprudence had done for the common law.^[279] And just as Pound and the other proto-Realists had ascribed (conservative) political dimensions to the legal method they criticized, as described above, they also sought to employ the method they suggested as a replace­ment - balancing of interests - for their own Progressive project. When, by the late 1920s, Pound became much less sympathetic to the cause of reform,²⁰⁰ his identification of connections between conceptualism/ formalism and reactionary politics on the one hand and of sociological jurisprudence/balancing and progressive politics on the other hand was

balancing’s beginnings: concepts and interests 69 already available to be taken up by the Legal Realists, with whom Pound famously fell out, and, later, their Critical successors.^[280]

5. Balancing and interests

Balancing’s earliest invocations show a wealth of different meanings for very similar language. Almost exactly the same terms figure in the writ­ings of Geny in France, Heck and others in Germany, and Pound in the US. But in French legal thought, the idea of balancing of interests, even though it surfaces at one prominent place in Geny’s methodological pro­posals, was not in fact all that central. For Pound, ideas of balancing and weighing were subordinate to the project of foregrounding ‘interests’, in particular ‘social’ interests. In German legal thought, finally, the two elements of balancing and interests were promoted jointly, as the core of a more suitable adjudicatory technique.

These distinct meanings had special implications for the question of the relationship between method and substance in law, which they starkly reveal to be a contingent one. In the US, the connection between legal method and politics, which the critics had attributed to categorization and other elements of classical orthodoxy, continued into the age of ‘the triumph of the balancing test’. This time, however, it was a conscious effort on the part of the Progressives to employ legal method for purposes of reform. Pound himself, as G. Edward White has noted, had a conception of ‘judicial decision-making as part of [a] larger project of social engi­neering’.^[281] Balancing of interest, in this project, became a Progressive legal ‘device’.^[282] Its principal purpose was in the metaphorical language he himself helped make so influential, to ‘recalibrate the scales’ as between individual rights and collective policies.

This connection between balancing as method and substantive prefer­ences was largely absent in Europe. In France, this was probably in part because the reform effort, both in relation to method and to substance,

was on the whole less ambitious than in the US. But the main reason was simply that the specific idea of balancing did not play such a central role in whatever substantive and methodological reform was proposed. In German legal thought, the Interessenjurisprudenz purposefully sought to present itself as a neutral, apolitical, juridical method. Heck did not settle on the concept of ‘interests' in order to recalibrate conflicts between indi­vidual constitutional rights and broad social policies. He chose ‘interests' as his conceptual category because he felt it offered the greatest scope for juridical precision. In stark contrast with Roscoe Pound's socially-pro- gressive proposals for balancing in the US, Heck and the other members of the Interessenjurisprudenz school were later even charged with promot­ing excessive individualism through their use of balancing of interests - a charge that Heck of course vigorously denied. Clearly, the idea that bal­ancing of interests would foster more socially progressive outcomes did not form part of the understanding of the Interessenjurisprudenz nor of its critics. This means that three radically different conceptions of the relationship between balancing as method and substantive outcomes can be identified: balancing of interests would promote social values (Pound), balancing would be completely substantively neutral (Heck) and balanc­ing would foster individualism (Heck's critics).

D.