28
BALANCING CONSTITUTIONAL RIGHTS
interaction and of the attitudes adopted towards their co-existence.73 The first two of these concern the character of, first, ‘the formal’, and second ‘the substantive’. Both elements can be shown to be contingent in various ways. Chapter 5 examines this contingency, analysing among other things the ways local legal actors typically describe legal formality and its opposites. Would it matter, for example, if in one setting formality were typically equated with rules and ‘ruleness’, whereas in another context the typical references are the ideas of ‘system’ and conceptual refinement? Broader associations could also be highly revealing, as where in one system formality is habitually related to a particular canonical court decision, or to a particular era in constitutional law, while such associations might be absent in other systems. The crucial point is that these associations may tell the comparative lawyer at least as much about local understandings of legal formality and its opposites as they might about the decisions or eras concerned. The third and fourth dimensions examine the character ascribed to the interaction between the formal and the substantive in law, and the nature of the attitudes typically adopted towards these encounters. Do the formal and the substantive, for example, relate to each other in a state of ‘unsynthesized co-existence’ – a state of permanent conflict and paradox? Or do local legal actors believe some form of synthesis could be possible? Is the conflict between rule and reality inescapable, or can it, in the words of Justice Leibholz quoted earlier, be to some extent ‘removed ’? And finally, is this dilemma of form and substance something lawyers tend to approach sceptically and with trepidation, or embrace with ambition, as a societal challenge only they can really handle?
E.
Origins: two sets of debates
For all its present day global pervasiveness, the discourse of balancing in constitutional rights adjudication has remarkably concentrated origins. It exploded onto the constitutional scene, as it were, in very similar circumstances, and at almost exactly the same time. Balancing fi rst explicitly surfaced in a handful of major decisions of the German Bundesverfassungsgericht and of the US Supreme Court of the late 1950s and early 1960s. The synchronicity is striking. The Bundesverfassungsgericht ’s first seminal balancing decision, in the Lüth case, dates from January 1958, while a balancing war erupted on the US 73
See Chapter 5, Sections B–E.