Giving valium to patient waiting for an abortion
sjamar at LAW.HOWARD.EDU
Sat Jun 1 00:20:46 PDT 2002
I am thoroughly unconvinced by Bobby Lipkin's putative
distinction between naive and complex balancing. Or perhaps
I don't understand it.
Balancing occurs constantly in the law. Generally it is
constrained by articulated values -what is to balanced
against what. It is not a case of Lipkin's idea of
(certainly not what Sandy has ever proposed) "naive
balancing" between two subjective desires loosed from any
moorings in history, society, principal, and law. But
anyone who thinks that balancing will not have an element of
subjectiveness, or that statutes or cases or rules can be
interpretted and applied literally without nuance and
balancing or that they can be written so clearly has little
understanding of language and how the world works. Surely
we can make rules like "stop at red lights." But the deeper
areas of law - such as fundamental freedoms - are not so
simple and absolute. A functioning society is constantly
balancing interests in legislation, in judicial actions, in
executive actions, in personal and collective actions.
This is not novel nor naive nor even very complex.
Tracing and articulating the underlying values and premises
for balances and rules and policies and principals and
decisions is generally advisable. But one ought not expect
there to be agreement on the premises or the values. We as
a society decide things by majority rule tempered by
fundamental limits in order to insure minority and
individual rights. We costantly balance one interest
against another - free speech or a more civil society?
Freedom of religious exercise or societal constraints
(murder, even if a religiously motivated human sacrifice
with a willing victim is properly constrained).
So I don't understand what Lipkin is saying. Does anyone
in the law really do "naive balancing"? Well, I'm sure some
decisions are made that way - and some judges decide things
that way. But even Scalia decides things on the basis of
his values and of values articulated in the law - though I
disagree with his interpretations and find some of his
decisions disingenuous - but he is implementing principles
and values - I just think they are often the wrong ones and
even when they are the right ones, the balance being struck
is wrong. The values are not hidden; they are transparent.
The values are not idiosyncratic, generally; they are just
not what I would emphasize in the balancing being done.
That is not naive balancing.
Prof. Steven D. Jamar vox:
Howard University School of Law fax:
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC 20008
"Not everything that counts can be counted, and not
everything that can be counted counts."
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