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3 Eur. Data Prot. L. Rev. 187 (2017)
Ten Questions about Balancing

handle is hein.journals/edpl3 and id is 207 raw text is: 

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.


EDPL 2|2017

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