The substantive: materiality and policy
One of the central themes in Economy and Society is what Max Weber identified as the ‘anti-formalistic tendencies of modern legal development', or the materialization of law.[886] In Weber's view, contemporary demands for ‘social' law and for ‘judicial creativity' engendered a new understanding of adjudication as turning on ‘concrete evaluations', rather than on the formally rational ‘logical analysis of meaning'.
[887] The hallmark of this new mode of lawmaking, as Weber described it, was balancing: ‘the expediential balancing of concrete interests' and ‘the free balancing of values in each individual case'.[888] This way of proceeding, Weber thought, was ‘not only nonformal but irrational '.[889]The processes of the materialization of law are widely understood as having intensified with the rise of the welfare state and the dawn of the ‘Age of Rights' after the Second World War.[890] The enunciation of ‘broad social goals' in legislation, and the implementation of judicial review of broadly formulated constitutional rights clauses are thought to have promoted ‘judicial methods that are informal, compared [...] to the traditional civil- law conceptual approach'.[891] The spread of these ‘informal' methods has brought about a crisis of formal legal rationality,[892] necessitating a quest for new types of legal rationality.[893]
The materialization thesis is broadly accepted for legal systems in all Western democracies, including those in Europe and the US.[894] And in accounts for both settings, since Weber, judicial balancing is seen as the prime manifestation of a new materialized, deformalized, mode of legal thought and practice. It is interesting to note, however, that accounts of legal materialization typically spend little energy on trying to identify what ‘the material' in law might mean.
Weber's own typology is a case in point. His definition of legal formality, while certainly ambiguous, is considerably more precise than the casual list of factors given to describe ‘substantive rationality'.[895] This neglect is curious. After all, the question of the identity of the substantive in law is not an easy one. By way of illustration, think of the list of possible opposites for ‘formal' and its derivations. Along with ‘substantive', a list of leading candidates would have to include at least ‘instrumental', ‘pragmatic', ‘contextual' and ‘particular'.[896] It is worth asking, therefore, whether this facade of uniformity might not hide different understandings of the substantive in law operative in different legal settings. Such different ‘substantives' might imply different ‘materializations' of law. And different ‘materializations', Weber would probably have agreed, could mean different forms of balancing.1. US: pragmatism, instrumentalism and policy
In postwar American constitutional jurisprudence, the substantive in law is associated with pragmatism, instrumentalism and ‘policy' reasoning.[897] American commentators often attest to the pervasive influence of these ideas. ‘Pragmatic instrumentalism', a combination of ‘philosophical pragmatism, sociological jurisprudence, and certain tenets of legal realism', is seen as ‘America's only indigenous theory of law'.[898] During the middle decades of the twentieth century, ‘this body of ideas' was, according to Robert Summers, ‘our most influential theory of law in jurisprudential circles, in the faculties of major law schools, and in important realms of the bench and bar'.[899] Pragmatism has long been ‘the working theory of most good lawyers',[900] and American judges are described as ‘practicing pragmatists'.[901] A similar story can be told for ‘policy', which is a ‘standard category in everyday American lawyer-talk'.[902] ‘Policy argument' or ‘policy analysis' - whether these terms are understood in the narrower sense of a specific form of utilitarian argument or in the broad sense of an ‘everything that is not deductive argument' - exemplify the ‘utilitarian and other expediential rules, and political maxims' that Weber saw as defining elements of the substantive in law.[903]
2.
The substantive in law: US versus German legal thoughtAre these ‘typically American' versions of the substantive in law any different from their ‘typically German', or even ‘European', counterparts? This is a difficult question, not least because demonstrating the absence of any ‘typically American' ideas in the German context would require proving a negative. Even so, there are many indications that subtle but significant differences do exist.
To begin with, the claim that pragmatism, instrumentalism and policy reasoning are in some way distinctive for American legal thought and practice has a distinguished pedigree in comparative legal studies. While instrumental views of law have also spread in other systems, it is commonly noted that the US has somehow ‘moved furthest in this direction'.[904] ‘Although European judges may becoming more policy-oriented', Robert Kagan wrote in the late 1990s, ‘they still are profoundly uncomfortable with the unbridled instrumentalism of many American judges'.[905] A first distinction, then, may simply be that even if very similar ideas are in operation, their influence is more intense and more pervasive in the US than in Germany.
Terminological differences offer a second set of clues. Mitchel Lasser has highlighted the potential significance of the fact that one legal culture, like the American, ‘uses a single term such as “policy” to express several different meanings whereas another legal culture, which apparently has no such overarching term, divides the concept into multiple subparts, such as “equity” or “legal adaptation”'.[906] 'The conceptual categories used in the two settings to describe the substantive in law do indeed differ markedly. Most notably, the term ‘policy' as used in American legal writing has no direct equivalent in German (or in French, it might be added).[907] The term ‘pragmatic' and its derivations are not commonly encountered in German academic legal writing.
The German word ‘Pragmatismus’ is in fact generally reserved for discussions of Anglo-American legal thought and philosophy.[908] Differences also go the other way. While more specific terms, like ‘pragmatism’, are rarely used in the German context, the overarching concept of ‘the substantive' or ‘the material' is, by contrast, rarely referred to in US jurisprudence. The general idea of the ‘materialization’ of law, for example, is, at least on this high level of abstraction, not nearly as important a theme in American legal writing as it is in Europe.[909] Similarly, the idea of a ‘substantive' constitution, or a ‘substantive' ideal for the rule of law, though by no means nonexistent, are still ‘relatively rare' in American constitutional jurisprudence.[910] Not surprisingly, Smend's terminology of ‘material constitutionalism' does not have an obvious analogue in the US.A third set of differences is related to these terminological points. Very often, when substantive elements surface in German constitutional jurisprudence, they are hemmed in by other ideas, doctrines or frameworks, or pulled up towards higher level of abstraction. As a result, they often lack much of the unequivocally instrumentalist, pragmatist or even ideological dimensions of American policy reasoning. In part, these background frameworks are themselves substantive in nature. Conflicts over social and economic issues in the first decades after the Second World War, for example, played out in Germany against a political-economic ideological background far more broadly agreed upon than any set of socio-economic ideas prevalent in the US at the time.[911] Other pervasive background understandings during this period were rather more methodological in their focus. Time and again, German legal scholars called for the ‘ Verwissenschaftlichung’ (‘the rendering scientifically acceptable') of substantive evaluations, by scholars and judges.
[912] ‘Verwissenschaftlichung’ is of course by nature a mode of formalization, in the sense that scientific standards are invoked to ‘discipline’ participants. Such ‘disciplining’ in American jurisprudence has consistently entailed resort to empirical sciences - sociology, psychology, economics.[913] The search for disciplining frameworks looked very different in early postwar German constitutional jurisprudence. There, ‘ Verwissenschaftlichung’ was sought in the form of a ‘ Wertungsjurisprudenz’ - a thoroughly theorized jurisprudence of values and valuation.[914] Other influential contemporaneous turns include those to ‘Systemdenken’ (‘systematization')[915] and towards the idea of a ‘topische Jurisprudenz’ (‘a jurisprudence of topics'), or ‘dialectical jurisprudence'.[916]Each of these streams of thought contributed ideas on how to discipline, organize and control the materialization of law through abstraction, situation, systematization, dialogue. Each, also, was very different from the more direct, unmediated ways that pragmatism, instrumentalism and policy reasoning influenced US constitutional jurisprudence. Smend's conception of the substantive as ‘value constellations' expressive of all cumulative learning and experience brought on by the Enlightenment, for example, is worlds away from the idea of the substantive as economicsbased policy argument. Not all differences, of course, are as dramatic. But even subtle variations in emphasis can be significant.
By way of example, take this 1969 assessment of the topical jurisprudence of Viehweg and Esser, written for an American audience by the German emigre professor Edgar Bodenheimer.[917] ‘[I]t might seem reasonable, at first sight', Bodenheimer wrote, ‘to identify dialectical reasoning with “policy” reasoning', but he cautioned: ‘Upon closer examination, however, it becomes desirable to enter a caveat against making this identification readily and without substantial qualifications'.[918] Dialectical reasoning in the German mode, in Bodenheimer's view, involved a much more situated and interstitial form of judicial creativity than American policy jurisprudence.[919] As he described the German perspective: ‘Although it is true that determinations of policy often form elements in the adjudicatory process, such determinations are incidental to the primary task imposed on the courts [...] This task, must, as a general rule, be performed within the framework set by the legal and social system and excludes free-wheeling forms of policy-making designed solely to accomplish objectives of political expediency'.94
Bodenheimer's reticence to equate US ‘policy argument' with German, or European, ‘topical jurisprudence' was, I would argue, entirely justified.
But not every comparative analysis has brought out difference in the same careful way. Here, by way of contrast, is an extract from one of the very first commentaries on postwar German constitutional rights adjudication written for an American audience, published even before the Luth decision was handed down. The comments concern the decision of the Bundesverfassungsgericht to ban the German Communist Party, or KPD, finding it to be ‘verfassungswidrig’ - contrary to the Constitution. The Court's opinion in this case, Edward McWhinney wrote, demonstrated that:the [German] constitution is not to be regarded as establishing philosophic absolutes, but standards capable of varying application in varying societal conditions, thus opening the way to a pragmatic, balancing-of- interests approach that is quite novel to German public law jurisprudence and clearly owes much to the influence of American legal ideas and techniques during the Allied occupation period.[920]
Everything in this observation betrays an Anglo-American perspective. The binary distinction between ‘philosophic absolutes' in the first amendment sense - McWhinney mentions the Dennis decision of the US Supreme Court for comparison - and ‘pragmatism' in its classical American philosophical meaning, simply does not match up with what the Bundesverfassungsgericht set out to do, as would become abundantly clear in Luth and other later decisions.[921] The idea of weighing and adjusting values was not novel, not even in public law, given Smend's influential work on the Weimar Constitution.[922] And on the influence of ‘American legal ideas and techniques': while the Allies of course had real sway over the structure and the content of the Basic Law when it was being drafted, there appears to be little or no evidence for any subsequent American influence on judicial method or scholarly thinking in constitutional law.[923]
3. Categories of the substantive
The ideas of ‘the substantive', ‘policy reasoning' and ‘balancing' are intimately related in American legal thought.[924] Explicit weighing is seen as the surest sign that courts are engaged in (illegitimate) policy-making, rather than (legitimate) ‘lawfinding'. Yet, if these same courts neglect or explicitly reject policy argumentation, they stand accused of ‘irrealistic' and ‘formalistic' judging. Both policy argument and balancing, therefore, are key sites of the ‘perpetual argumentative conflict' that characterizes American legal reasoning.[925]
Adopting a comparative perspective on the materialization of law, however, enables a framing of the intrusion - or rather, as it would then become, in more neutral terms: the inclusion - of substantive elements in legal reasoning in entirely different terms. Where in the paradigmatic American experience, the substantive has to be policy, politics or unprincipled pragmatism, an entirely different category of substantive prevails elsewhere, notably in German and European constitutional jurisprudence. The substantive, it turns out, can be ‘material constitutionalism' with its durable yet evolving constellations of values. It can mean ‘topoi ', or the consensual ‘common places' of the Aristotelian tradition. And most comprehensively, substantive can mean principled.[926]
D.