Balancing
by Al Katz
Al Katz is a Professor
of Law, State University of New York at Buffalo, Faculty of
Law and Jurisprudence. This paper originally appeared as a Buffalo
Critical Legal Studies Monograph, 1983. This article is the
product of the Balancing Seminar at Buffalo, 1978-1982, whose
members included: Kathleen McDermott, Elizabeth Mensch, Richard
Milan, Dennis Patterson, Melanie Pierson, Rochelle Reback, Judith
Romanowski, Lee Smith, John Troll, William Bozzuffi, Betsy Broder,
David Bryan, William Clauss, Peter Diamond, Herbert Eisenberg,
Alan Freeman, Philip Halpern, Jacob Hyman, Joseph Kelemen, Gene
Krauss, Virginia Leary, Stephen Wieczorek, Gary Wojtan, John
Ziegler.
"The coalescence
of a research paradigm creates the possibility of an accumulation
of knowledge, and thus the phenomenon of scholarly progress.
What is less often recognized, for the human sciences at least,
is that any consolidation of a paradigm depends on the exclusion,
or relegation to the status of 'art', of those elements of the
changing discipline which call the credentials of the discipline
itself into question, those research practices which . . . work
at the edges of disorder." James Clifford, On Ethnographic
Surrealism, 23 Comparative Study of Society and History 539,
554 (1981).
The Seminar gratefully
acknowledges the contribution of visitors: Paul Diesing, Fred
Konefsky, Howard Berman, Elizabeth Mensch, Duncan Kennedy.
I.
Why the 'Background of Truth' 18
II. Binary Choices and Middle
Positions 21
III. Litigation and the Objectivity
of Represented Interests 24
IV. The Opening of Science and
Social Interests 26
V. Civil Society and Normativity;
Political Society and Representation 27
VI. The Productions of Representation,
Expertise and Balancing 31
Notes |
I. A study
of balancing practice would be wise to avoid • begging
the most interesting questions. But it is difficult to confront
a practice in the purity of a phenomenology that finds meaning
below surface qualities without being guilty of illegitimate
importations from sources external to it. To some, for example,
balancing is an exercise in reason, a mode of rationality, a
type of logic, a procedure of thought that might loosely qualify
as a methodology. Balancing-as-reason is necessarily located
within a tradition that has definite contours, a particular
history, and polices its boundaries with rules operating as
a system of exclusion/inclusion. In order to minimize the distortion
of limitation, the seminar situated balancing against a background
of Truth, as a moment in the movement of Truth chosen strategically
to insure preservation of a discursive multiplicity. In order
to leave open, that is, the ability to speak of balancing as
faith, reason, intuition, ideology and power.
There is another, perhaps more honest, reason. The seminar devoted
to studying balancing took so many turns over the five years
— each semester and frequently within single sessions
as well — that postulating balancing as a moment in the
movement of Truth seems the most plausible way to account for
the unity of these conversations. I expect that some will regard
this as a cheap trick since any disparity can be unified under
a sufficiently grand concept, and what could be more grandly
pretentious than Truth. The remainder of this paper may be read
as an argument that it is not a trick to think of our conversations
in relation to Truth, and it is certainly not cheap. A photographic
essay may not be falsified on the ground that it is not a movie.
From our first sessions straining against Horwitz's thesis in
"The Transformation of American Law" to the last ones
wallowing in the gloom of Levi's "Barbarism With a Human
Face", our meetings have tried to get a sense of different
experiences of the world. With the benefit of hindsight it is
no surprise that we should be brought, time and again, to the
question of difference itself, to the question of historical
continuities and ruptures, to the extent we can grant conceptual
language a consistency that spans centuries and therefore makes
possible a history of balancing — or any other practice.
No sensible university course would begin in this 'haphazard'
fashion; without a formulated concept, a definition of the key
term, or at least a description of the practice. But we avoided
initial precision to prevent a closure that would surely be
boring and unsatisfying in order to open up possibilities and
agitate a sense of wonderment. Whatever else may be said of
these conversations, from time to time they succeeded in producing
bewildered amazement and severe depression — within an
academic program! We did not begin, of course, in some fantastic
mode of absolute freedom but with an understanding that balancing
was a practice among lawyers that could be treated as a way
of knowing or justifying. The possibility of a disjunctive relationship
is itself interesting since the practices of science produce
their knowledge through a method of investigation and make statements
that must be justified
by the same method; knowledge and justification cannot readily
be disjoined. In legal practice the possibility of treating
balancing as either a way of knowing or a way of justifying
is created by a more or less widely accepted 'political psychology'
of disingenuousness and deception holding that balancing as
a discourse of justification may have little to do with the
actual motivation of decisions and judgments. Similarly, philosophers
in the modern tradition might readily claim that knowing and
justifying are quite different practices, or perhaps require
different sorts of statements. Both the psychology and the philosophy,
however, may be situated in a precise relation with certain
disruptions in the organization of knowledge; a particular epistemology
conditions and rounds the proposition that knowing and justifying
are distinct practices. And to the extent justifying refers
to a logos it necessarily participates in a history of what
counts as a statement of Truth or a true statement. It seems
certain that balancing, the possibility of a disjunction between
knowing and justifying, and a philosophy rendering the disjunction
coherent, were all part of the same development in the history
of Truth. Thus the interrogation of balancing need not focus
particularly on the disjunction of knowing and justifying or
the philosophy legitimizing it since, being all part of the
same movement, they are unlikely to do anything but mutually
entail each other or at least be distributed at different levels
of abstraction within the same discourse.
The distinction between knowing and justifying might vanish
in yet another way. Contemporary pragmatists might elide or
bracket balancing as a Truth while accepting it as a device
or operational strategy. Balancing might be preserved as an
instrument through its Truth be criticized. This option was
uncovered as seminar discussion rapidly moved from discussion
of "The Transformation of American Law" to images
taken from "Zen and the Art of Motorcycle Maintenance"
— and no one thought the movement ridiculous. The alternatives
of a moral theology, an instrumental political rationalism,
or an intuition grounded in an innate sense of a thing that
is open to the play of appropriateness, yield a certain family
resemblance when the possibility of self-criticism is accepted.
Levi-Strauss, for example, asserts a severe distinction between
bricolage and engineering. The bricoleur is a kind of handy
man or jack of all trades who uses the means at his disposal,
adapts them to particular needs, regards their preexisting 'nature'
in light of necessity and operational functions, submitting
them to trials and tentative appraisals. Engineering is founded
on propositions, employs principles of general validity and
articulates concepts having no absolute dependence
on the context in which they are to be employed. Engineer-in
is the latent theology of every bricoleur; the fantasy that
transforms every art into a science. But more to the point,
method retained as a mere device or operational strategy in
order to leave open the question of its Truth becomes indistinguishable
from bricolage: "as soon as we admit that every finite
discourse is bound by a certain bricolage and that the engineer
and the scientist are also species of bricoleurs, then the very
idea of bricolage is menaced and the difference in which it
took its meaning breaks down" (Derrida, 285).
In addition to the basic premise
that balancing is a lawyer's practice, we had the singular experience
of being involved with questioning the obvious. The best evidence
the seminar had that balancing could not be understood at the
surface of its phenomenology as a practice was liv ing in an
environment that regarded our enterprise as nothing less than
peculiar and largely pointless. To many people it was simply
obvious that if one does not believe
in God, if there is no Truth, then all one can do is balance.
For the seminar, however, this claim could not possibly serve
as a point of termination; on the contrary, it was exactly what
made balancing worth study. If, to trace the logic of the Supreme
Court, balancing plays the same role
in contemporary life that God played in the life of our ancestors
then it appears as simply another system of belief, of Truth,
and is therefore caught in the stagnant contradiction of a Truth
determined by the absence of Truth.
The seminar thus confronted
problems generally per ceived as mired in the swamp of a dismal
metaphysics. Is it merely ironic that people whom ordinary history
describes as alienated from nature and from modes of transcendence
do not seem conscious of it, while those who need to con-
front liberal alienation in some of the forms of its appearance
feel intensely external to their own situation? Save for those
snared within the traps of a narrow and cramped ideology there
is no grand novelty in any of this. People with pride in their
sharply sophisticated social or institutional realism plainly
recognize that balancing is a not particularly defensible political
technology that is nevertheless reasonably well suited to ordinary
liberal theory, injects a modest dose of reason into allocative
decisions, and provides some defense against the traditional
dangers of extraordinary accretions of power. The cause of liberal
freedom is best served by sharpening the practice, improving
its tendency toward neutrality and rationality while deterring
the degeneracy of slipshod and mindless applications encasing
the arbitrary and the corrupt in a fog of rhetoric. The attitude
is strikingly similar to the slightly older defense of analogy
as the essence of legal reasoning, bearing a remarkable capacity
for wisdom when properly employed.
|
The mood of disintegration, by
contrast, is less optimistic and confident that balancing is anything
more than a way of muddling through the inevitable consequences
of a pluralism that seeks to preserve itself and the mystique
of individual autonomy that constitutes it. The positive virtue
of absolute interest diversity and the absence of a coherent social
purpose together create the space within which private satisfactions
may be realized — a space bounded by balancing multiple
desires. Since this balancing can never be grounded in an objective
reason the mood of disintegration is accompanied by a chronic
depression perhaps tempered by jocular indifference, resignation
or cynicism.
The tone of the legal literature that became conscious of balancing
in the late 1960s and throughout the 1970s was invariably one
of sophisticated realism in the sense noted above. The tradition
that closely aligns legal scholarship with practice no doubt helped
structure the balancing literature according to a discourse of
identifications, levels, and weights, within which criticism could
serve to improve, refine and ultimately contribute to the legitimacy
of balancing as an 'approach'. Almost no attention was paid to
alternatives since the received wisdom located balancing in postwar
First Amendment law where it was set against a literal absolutism.
But even this alternative turned out to be more than a little
naive since the absolutism in question usually referred to a legislative
or constitutional text which was itself the consequence of balancing.
With freedom of speech posed as an example of generic or definitional
balancing the way was cleared for the insertion of all issues
respecting the separation of powers within a balancing approach.
Balancing quickly became the concrete or operational meaning of
the new legal process according to which all legal actors had
to take account of everything — including the limitations
imposed by the actor's own specificity within a functioning division
of labor. The simple balancing approach yielded to a complexity
of levels: balancing was not only proper within a division of
labor, it was also employed to manage the division of labor itself.
Balancing could be defended as a discourse of reason precisely
because of its operational complexity. First, there was the matter
of range of relevant considerations. The approach was impoverished
and distorted — and often suspected of insincerity —
by an inappropriately narrow accounting of relevant considerations.
The self interest of the actor would generally provide some assurance
against error on the side of excess since a broader range of relevance
entailed far more work and increased the difficulty of reconciliation
or resolution. Apart from mistakes at the level of particular
inclusions and exclusions, the real danger of ineptitude lay in
the direction of deficiency. Second, relevant considerations should
be distributed in recognition that they may belong to different
levels of experience along a continuum from the particular/concrete
to the universal/abstract. For example, national security may
never be introduced to justify the seizure of a particular letter
addressed to an individual. Either the security consideration
must be unpacked to expose the specificity of the danger posed
by the letter, or national security must be balanced against domestic
insecurity. Disparity of levels marks a failure of rationality
or indicates the presence of a tendentious balancer. Finally,
with all relevant considerations distributed at commensurate levels
of relative generality, all that remains is the assignment of
appropriate weights. It would not be sensible simply to count
the number of considerations since to do so puts excessive emphasis
on the discrete quality of elements that are bound to suffer some
overlap. More importantly, even an endless series of trivial considerations
ought not outweigh a single blockbuster. Extremes are useful to
make the point, but if the task of identifying relevant considerations
is properly managed and if they have been assigned their proper
levels of generality, bright disparities of weight vanish in the
dim perception of very close and very hard cases.
It takes no great sleuth to discover the soft center within this
moderately elaborate analytic. Relevance is an essential concept
in legal work, yet very little is said about it other than a notation
of its relational character —- one that is frequently not
absolute but specifies a relativity. Considerations may be not
very relevant or weakly/strongly so, and arguments of relevance
(as well as relevant arguments) are the stuff of everyday practices.
Balancing has nothing special to say about relevance, so the matter
is left open for arguments and choices that depend upon some other
criteria or are situated in some allied discursive mode. To the
extent its rationality depends upon developing a menu of relevant
considerations balancing is at the mercy of an alliance to which
it adds nothing. The approach takes pains to articulate commensurate
levels of generality upon its discovered range of considerations,
but it must do so without the guidance of a theory or principles.
In spite of its intense devotion to particularity, for example,
balancing in adjudication is forced to generalize its cases in
order to avoid triviality or pretermitting results. Since what
is at stake is not merely the satisfaction of parties but a ^state-ment
of the law, some generalization beyond the contours of a singular
event is inevitable. Furthermore, it seems widely assumed that
deciding cases ad hoc is no less offensive than deciding abstract
issues. So the questions must be posed as whether a certain level
of expectation security ought to be assured to one bargaining
party against the occurrence of contingencies that render performance
a hardship to the other party, or whether abortion should be permitted
where pregnancy threatens the life of the mother, or whether the
government can employ perjured testimony in a case where other
evidence overwhelmingly implicates the defendant. Determining
the proper level of generality is not a problem unique to balancing
but is intensified by it precisely because balancing is so closely
tied to adjudication and its tradition of concrete, narrow particularity.
Twenty years ago Fried introduced this connection into the literature
of balancing by spelling out the obvious implication of the traditional
dichotomy: courts are most legal when they balance at concrete
levels and most political when they answer general or abstract
questions. The point might be well taken but it lacked the power
to shape an approach that is exquisitely labile, for balancing
was readily employed in determining its own locus of operation:
adjudication would be situated between the ad hoc and the abstract,
between resolving particular disputes and making general legal
statements by balancing competing considerations. That is, no
'method' external to balancing was capable of specifying its theater
of proper functioning, but failure to be conscious of this lack
contributed to the flight of legal discourse from the social substance
of its cases in favor of a consuming self analysis. Modern lawyers,
like modern artists, lost interest in the world.
By far the most transparent weakness of balancing is its assignment
of weights to the litany of considerations it identifies. The
difficulty no doubt contributes to balancing competing considerations
pegged at incommensurate levels of abstraction: higher levels
weigh more and that simplifies an accounting otherwise relegated
to the abyss of a utilitarian mini/maxi calculation. Legal actors
reasonably comfortable with balancing as a mode of rationality
in the first two operations will come unstuck here, if at all,
because weighing tends to expose the absolute dependence of balancing
on values. Economists suggest that this difficulty be eliminated
by the introduction of market mechanisms: a resolution according
to the movements of power rather than as a function of relative
virtue — the preferred technique traditional lawyers exhibit
when they explicitly or implicitly invoke 'shared values' to valorize
one or more of the competing considerations.
Weighing may expose the absolute salience of values, but they
are not absent from the identification of relevant considerations
or selection of the proper level of relative abstraction. Since
values construct or dilate perception and perception elaborates,
refines and distorts values, the perception of a problem entails
an identification of considerations and a selection of proper
levels of abstraction that is fully saturated with values. Were
it the goal of balancing to shelter law from the unjustifiable
intrusion of subjectivity it must be condemned as a failure on
this ground alone. But liberalism is far too savvy to be caught
out so easily; it recognizes the obvious truth that there can
be no perfect escape, no secure sanctuary within which public
life can be assured an immunity from the contamination of private
values. Balancing is simply a way to minimize the effects of this
contagion loosed upon the world when we achieved our freedom from
totalized social life. The study of balancing thus returns to
an understanding of it as a moment in the movement of Truth. |
