Summary
Summary LAWS10090 Constitutional Law Proportionality and balancing Seminar
- Module
- LAWS10090
- Institution
- The University Of Edinburgh (ED)
LAWS10090 Constitutional Law Proportionality and balancing Seminar
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Proportionality and balancing- Seminar 3 Week 3Age of balancing
The metaphor of balancing refers to theories of constitutional interpretation that are based on the
identification, valuation, and comparison of competing interests. By a "balancing opinion," I
mean a judicial opinion that analyzes a constitutional question by identifying interests
implicated by the case and reaches a decision or constructs a rule of constitutional law by
explicitly or implicitly assigning values to the identified interests.
The Court employs a different version of balancing when it speaks of "striking a balance" between or
among competing interests. The image is one of balanced scales with constitutional doctrine
calibrated according to the relative weights of the interests. One interest does not override
an? other; each survives and is given its due. Thus, in Tennessee v. Garner,13 which
considered the constitutionality of a state statute permitting the use of deadly force against
fleeing felons, the Court ruled neither that the state interest in preventing the escape of
criminals outweighed an individual's interest in life nor that the individual's interest
outweighed the state's. The "balancing process"14 recognized both interests: The Court
ruled that an officer may not use deadly force unless such force is necessary to pre? vent
escape and the officer has probable cause to believe that the suspect poses a threat of
serious physical harm.15 What unites these two types of balancing?and the reason they will
be considered together?is their shared conception of constitutional law as a battleground of
competing interests and their claimed ability to identify and place a value on those interests.
Commentators have occasionally distinguished balancing that estab? lishes a substantive
constitutional principle of general application (labeled "definitional" balancing by Professor
Nimmer) from balancing that itself is the constitutional principle (so-called "ad hoc"
balancing).28 New York v. Ferber2* is an example of definitional balancing. Ferber's holding,
that the distribution of child pornography is not protected by the First Amend? ment, may
be applied in subsequent cases without additional balancing. Ad hoc balancing is illustrated
by the Court's approach in procedural due process cases. Under Mathews v. Eldridge,30 the
process that the Consti? tution requires is determined by balancing the governmental and
private interests at stake in the particular case.81 The Court's choice of balancing
methodology may influence results; certain interests may count more or less when
considered on a global or case-by-case basis.82 Furthermore, ad hoc balancing may
undermine the development of stable, knowable principles of law. But the critique of bal?
ancing developed below will generally apply with equal force to defini? tional and ad hoc
variants.
The method of balancing
Balancing consists in three steps: first, the degree of infringement with a human right is
established. Secondly, the importance of satisfying the competing principle is established. At
the third step, it is established whether or not the importance of satisfying the competing
principle justifies the infringement with the human right.
The question of whether the limitation clause should be defined rather narrowly or broadly
is the same as the question of how fundamental rights should be defined in general. There
, are six arguments why narrow definitions of rights are problematic and why broad
definitions are preferable.7 First, narrow definitions are only seemingly free of balancing .
The outcome of a narrow interpretation of a fundamental right is always based on balancing,
since it relies on reasons for and reasons against the protection. 8 A striking example for this
mistaken view is Greer’s proposal concerning Wingrove v UK.9 He argues that ‘the right to
freedom of expression can plausibly be defined as excluding the right to cause gratuitous
insult to religious…sentiments, while the right to freedom of thought, conscience (p.47) and
religion can plausibly be defined as limited to protection only from gratuitously insulting
criticism’ and claims that this was ‘not an exercise in “balancing” as such’. 10 If, however, the
right to freedom of speech is a relative right and defined by saying all speech but hate
speech is protected, the outcome relies on balancing free speech against the prevailing
rights of the person the speech addresses. 11 By applying a broad definition, in contrast, it is
recognized that balancing is unavoidable, and therefore any question of balancing is
removed from the other stages and treated separately and openly. 12
narrow definitions are structurally deficient. They could cause ‘major problems with regard
to the structural and conceptual distinction between scope and justification’. 13 If narrow
definitions rely on hidden balancing, the right’s content and the right’s restrictions are mixed
up. The question about the right’s content and the question about the right’s restrictions,
however, must be treated separately, since they concern different logical procedures. The
right’s content is to be defined by interpreting the constitutional text. Competing interests
are not to be taken into account at this stage. The competing interests come into play within
the right’s limitations, in particular in applying the proportionality test with balancing.
Narrow definitions mix these two different procedures up. The argumentation is
unstructured and obscure. A broad definition, in contrast, has methodological advantages. It
doesn’t take competing interests into account by defining the right’s scope. The definition is
found by interpreting the constitutional text, and the competing interests are taken into
account openly at the balancing stage. Balancing only takes place at the final stage of the
proportionality test.
Fourthly, narrow definitions lead to legal uncertainty. If narrow definitions rely on balancing,
the content of a right depends on a balancing process. In (p.48) consequence, even the
prima facie content of the right is not predictable anymore. The right’s content varies from
case to case, dependent on the competing considerations taken into account by defining the
right’s scope.
Fifthly, the hidden balancing approach reduces the state’s duty to justify rights restrictions. It
empowers authorities to deny protection by arguing that a certain right’s content does not
protect the behaviour in question.
There are two claims here: first, that balancing inevitably entails moral reasoning; secondly,
that it pretends to be morally neutral. While the first claim is true, the second is false.
It is even more important that the theory of legal argumentation sheds light on the
very nature of the relation between moral and legal argumentation as (p.54) well. The
distinction between internal and external justification matters here.50 It is concerned
with the relation of balancing and reasoning.51 Again, this distinction has been
developed in the context of argumentation by means of the syllogism, but it is
applicable to balancing as well, as has been demonstrated recently.52
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