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

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.





©Al Katz • Prof. of law SUNY, Buffalo, 1969-1989 (ret.)