Naive and Complex Balancing

[Robert Justin Lipkin]

       Respectfully, I do think that Steve Jamar misunderstands both complex
balancing and naive balancing. But perhaps the lack of clarity of my original
post is responsible for misleading him. Further, I do not offer this
distinction as a dichotomy in which all examples of judicial reasoning fall
into one or the other category exclusively. In contrast, it is a distinction
between two paradigms of judicial reasoning that might at times overlap in
concrete cases, but when they overlap or exist simultaneously in the
reasoning of a particular judge, the distinction helps us identify the two
different patterns of reasoning. .

       Steve is, of course, right, that balancing "occurs constantly in the
law." But I never denied that, nor do I even believe this to be
controversial.  The question is what kind of balancing occurs (and should
occur) in the law and whether the distinction between naive balancing and
complex balancing is useful in understanding judicial balancing.
Additionally, the conflict between naive balancing and complex balancing has
little to do with eliminating subjectivity (or interpretation, though these
conceptions, of course, are not the same) from legal reasoning, or any type
of reasoning for that matter. Nor does naive balancing attempt to interpret
statutes "literally without nuance." (I do not believe that such rules as
"stop at red lights" are or can be literally understood or enforced, whatever
that means.) Similarly, the conflict is not about whether desires are "loosed
from any moorings" in history, society, and principle.  What then is the
conflict about?

       First, naive balancing is not just subjective in the manner that all
reasoning is in part; it is radically subjective. For example, though naive
balancing is steeped in history, society, and principle, the naive balancer
refrains from explaining or identifying how these elements affect or
determine the balance. Of course, everything presently derives from history,
etc.; but saying so isn't very illuminating. Second, even when the competing
values are obvious in a particular conflict, the naive balancer refuses (or
at least refrains) from delineating a principle for ranking the values. Any
judgment that value X sometimes trumps value Y and then at other times value
Y trumps value X, without providing a procedure for determining and
explaining when (and why) these differences exist, in my view, should be
problematic to anyone trying to understand a particular domain of human
inquiry, especially in trying to understand and to apply the law.

       Keep in mind that naive balancing is not, as Steve implies, naive
about "how the world works." (Perhaps, the term "naive" is inappropriate. If
so, call it "simple," or "direct," "categorial," or better yet "unmediated"
balancing.) Naive balancing is a formidable view about how the world works
and about how reasoning and conflicts of value should be understood.
(Understanding the distinction between naive and complex balancing can be
assisted by comparing it to the distinction between act- and
rule-consequentialism, though these distinctions are far from identical.)
Steve asks "[d]oes anyone in the law really do 'naive balancing'." And then
goes on to say that "even Scalia decides things on the basis of his values
and values articulated in the law." The problem here is that Scalia is
arguably the best (discounting for Bush v. Gore, in my view) example of a
complex balancer on the Court today. So I am sure that my original post was
insufficiently clear--leading to Steve's misunderstanding of these
categories.

       Indeed, naive balancing is no enigma; it has been the judicial
philosophy, I think, of at least two important jurists Justices Powell and
O'Connor. (If I am wrong about the description of their judicial philosophy,
please attend to the description, and I'll withdraw the attribution.)
Typically, these Justices are described as context-specific or judges that
make their decisions case-by-case. If I understand such judicial strategy, it
amounts to this: The judge hears the case, attends to the facts, the context,
the conflict, and the burdens a particular judgment imposes on the plaintiff
and the defendant and of course prior law. Then she decides the case by
formulating such a judgment applying it perhaps to similar cases. The judge
then follows the same procedure for the next case, and so on. (The naive
balancer will often embrace analogical reasoning, but rarely formulates
convincingly the principle explaining how such cases are analogically
connected.) Stanley Fish is a naive balancer, and one could, I suppose,
arguably (though perhaps uncharitably) interpret Edmund Burke's philosophy of
history and tradition as committed to naive balancing. (Indeed, one could
even argue that the use of an irreducible conception of reasonableness in law
generally is a gigantic subterfuge which attempts to camouflage naive
balancing with a complex balancing suit of clothes. But remember the
Emperor.)

       Let's remember that this discussion of balancing derived from the
issue of whether a nurse, on conscientious grounds, should be permitted to
refrain from giving valium to a patient waiting for an abortion. My concern
was that the discussion seemed (perhaps I'm wrong about this) to ignore the
importance of principles which would be tested against our intuitions and in
turn would test our intuitions. (I recognize the difficulty in formulating
such principles.) Naive balancing insists that this thrashing out of
intuitions is all she wrote. (I do not say that participants in this
discussion were self-consciously embracing this view.) Without attempting to
systematize, at least partially, how these intuitions support different
principles, the discussion, in my view, was doomed to incompleteness. Now I'm
not denying that understanding and spelling out our intuitions is important.
Indeed, it is an absolutely essentially first step in understanding any
domain of human inquiry, but it is not the only step. After spelling out our
intuitions (and indeed often while spelling them out) it is important to go
to the next level, namely, starting to formulate principles (general
statements of values and how to rank values and settle conflict between
values). I understand that we might not always agree on which principle to
embrace. But I would insist on three important epistemic values here: (1)
principles are typically superior to unsystematized intuitions, (2)
attempting to formulate principles is desirable generally and has the value
of helping us better understand our intuitions, and (3) even when we fail to
agree on a principle, the quest is illuminating, in part, because it sets the
stage for further inquiry and the possibility of reasoned consensus.

       So one might ideally (hopefully not quixotically and in defiance of
our present understanding of the Establishment Clause) embrace the democratic
determination, through the legislature, of  those values to be balanced, the
weight of the values, and the method for resolving conflicts of values.
Courts and judges will still argue about the correct interpretation of laws,
sometimes getting it wrong by remaking the work of the legislature. And Steve
is right that even under this regime subjectivity will not (cannot) be
eliminated. (One might question why eliminating subjectivity entirely should
even be anyone's goal.)  But under this system courts are directed or guided
by the sort of "epistemics" that ultimately has power only when decided
democratically. These epistemics provide the framework within which judges
should work just as hard as before, but now the framework is before them as
an explicit, though obviously not automatic, guide. As for courts providing
the appropriate check on the majorities, during my seventeen years in the
legal academy, like others, I've grown increasingly skeptical about the
empirical record of the Court in providing such a check. (Though, of course,
there have been notable exceptions.) Perhaps, some inter-govenmental check
would be preferable despite its rejection by the Founders.

       In conclusion, the conflict between naive balancing and complex
balancing is not a trivial one. Nor is either category a caricature of actual
judicial balancing. I would embrace complex balancing, but I recognize that
that choice is controversial. However, I would insist, Steve's post
notwithstanding, that these categories are real and important, and that each
of us must decide which sort of balancing to endorse.

Bobby Lipkin
Widener University School of Law
Wilmington, DE

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