Ten Questions about Balancing
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Discussion | 187
Ten Questions about Balancing
Bart van der Sloot*
I want to thank Raphael Gellert for his elaborate reply and interesting points for fur-
ther discussion. I see this only as the beginning of a longer debate and will respond
briefly, trying to distinguish between ten different questions.
1. What Is Balancing?
I think the main point of my editorial in issue 1/2017 was that the metaphor of 'bal-
ancing' or 'weighing' different interests is inapt for the legal domain. The concepts of
balancing and weighing are taken from the physical domain, where they connote a
situation in which two different objects with a certain weight, say a cup of sugar and
a chunk of gold, are balanced against each other on a weighing scale. The process of
weighing is accurate and neutral, because there are international agreements on how
the weight of an item can be measured. For example, there is an international agree-
ment on what is the International Prototype of the Kilogram (IPK) - it is 'defined as the
mass of the international prototype of the kilogram [1st Conference Generale des Poids
et Mesures (CGPM), 1889]. The international prototype of the kilogram is a cylinder
of platinum -10 per cent iridium alloy about 39 mm high and 39 mm in diameter. In
addition, there are set standards and methods for neutrally and objectively weighing
different objects against each other. Consequently, objects have weight, there is an
impartial way to determine their weight and a neutral procedure for balancing those
objects.
In the legal realm, however, this does not hold true. A legal principle does not have
any weight - the right to property has no weight, nor does the right to privacy or na-
tional security. Rather, we (researchers), politicians and judges can 'assign' weight to
a legal principle-for example, liberals mightfind 'liberty' more importantthan 'equal-
ity', while for socialists, this may be the other way around. Both assigning weight to a
legal principle and the question of which principle outweighs the other is a subjective
choice. Consequently, rather than saying that a legal principle has weight or that one
outweighs the other, it would be more useful to speak of the fact that we find 'liberty'
more important than 'equality', or the other way around - and avoid using the con-
cepts of weighing and balancing. A final difference is that there is a common base unit
in the physical realm in which we can express weight - for example a kilogram. This
Bart van der Sloot, Senior Researcher, Tilburg Institute for Law, Technology, and Society (TILT)Tilburg University, Netherlands;
EdpL Managing Editor. For correspondence: <B.vdrSloot@uvt.nl>.
DOL: 10.21552/edpl/2017/2/8
1 TJ Quinn, 'New Techniques in the Manufacture of Platinum-Iridium Mass Standards' (1986) 30(2) Platinum Metals Rev 7 <http://www
.technology.matthey.com/article/30/2/74-79/> accessed 24 July 2017.
2 Bureau International des Poids et Mesures, 'Resolution of the 1st CGPM (1889)' (1890) <http://www.bipm.org/en/CGPM/db/1/1/>
accessed 24 July 2017.
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Ten Questions about Balancing
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