Weighing Values and Balancing Interests

One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which principles should be established for deciding between conflicting considerations? Another category includes institutional questions: which individual or body should decide normative questions, and should the normative nature of the decision be manifest or concealed?

Regarding the substantive questions, it is important to distinguish between a balance of interests in its fundamental sense - i.e., the idea that the proper way to resolve normative questions is to take all relevant considerations into account while assigning proper weight to each consideration in light of its characteristics and relative importance - and the substantive and institutional conceptions of this concept. The fundamental purport of the concept of balance of interests does not have a reasonable substitute although, due to its generality, it is almost devoid of substantive content. On the other hand, there is disagreement over the substantive elaboration of this concept, including disagreement regarding the identification of the relevant considerations in each situation, the determination of the weight of these considerations, and the resolution of the clash between conflicting considerations. In addition, there is disagreement over the institutional matter of which individual or body should decide the substantive questions in the legal realm. Various specific approaches for weighing considerations or balancing interests give content to this fundamental notion on both of these levels - the substantive and the institutional. It is often the case that no clear distinction is drawn between balance of interests in its fundamental sense and balance of interests in its specific substantive and institutional senses. The lack of such a distinction is most prominent when criticism is leveled at this concept in its fundamental sense based on arguments related solely to a particular substantive or institutional conception.

On the institutional level, several questions arise: by which criteria should laws be established, that is, which criteria should be used to analyze the justification for current laws or to support or criticize them, and by which criteria should existing laws be interpreted? The central distinction in this context is between normative criteria, which require an analysis of moral considerations, and non-normative criteria, which are not based on such an analysis. One possible answer is that the content of laws should be determined and that laws should be interpreted according to ideal morality, i.e., the correct moral position (in the opinion of the lawmaker). A second possible answer is that the content of laws should be determined and interpreted in light of the accepted morality of the relevant society. A third answer is that the content of laws should be determined and interpreted in light of the prevailing law of the legal system in question; that is, that existing laws in the relevant field should be preserved (if such exist), or inferences should be drawn from existing (local or foreign) laws that deal with similar issues. With respect to interpretation, there are also alternative interpretations in accordance with the common meaning of the wording of the text or with the position of the author of the text.

The first approach, which states that the lawmaker or the interpreter of the law should rely on his or her normative judgment to decide on the correct interpretation, requires a normative analysis, including a decision between conflicting considerations. In contrast, the other approaches do not require a normative, but rather a descriptive (factual, empirical) analysis: an examination of the prevalent morality in the relevant society, or of the prevailing law in the relevant legal system or in other legal systems. Naturally, the non-normative alternatives - regarding both the determination of new laws according to prevailing morality or law and the interpretation of existing laws according to the wording of the text or the goal of the author - require a preliminary normative decision; however, this is not a decision made by the lawmaker or interpreter, but rather by another person or persons, such as the majority of the public (with regard to a determination of the law according to prevailing morality) or the author (with regard to an interpretation in light of the author's position). Therefore, the implication of the non-normative approaches is a decision (with normative significance, of course) by the lawmaker or interpreter to transfer the normative decision regarding the content of the law to another person or persons. The normative considerations for and against the various alternatives do not lead to a sweeping conclusion to always adopt a particular alternative, but rather to the conclusion that sometimes one alternative should be adopted while at other times a different alternative should be adopted. Therefore, these (normative) considerations are not to be employed just once, but must be reexamined in each context. Occasionally, the conclusion that the law should be determined or interpreted directly in light of normative considerations is the only applicable, or the most appropriate, approach. This does not mean, of course, that a normative analysis by judges is always a perfect one, but rather that reliance on normative considerations is sometimes preferable to the other alternatives. An analysis of normative considerations must, therefore, play a central role in ascertaining both the appropriate law as well as the prevailing law.

The doctrine of balance of interests in Israeli law - which plays a central role in all fields of law - raises several problems. The most basic problem relates to the level of generality at which the relevant considerations are defined. The level of generality at which conflicting considerations should be analyzed is a function of the nature of the relevant considerations since their content determines which factual characteristics possess normative significance. For example, if considerations that favor freedom of expression equally support all expressions, then the value or consideration or interest of freedom of expression should be treated as one uniform principle; but if some of the considerations apply only to some expressions or apply to different expressions to a different degree, then a distinction should be made between different aspects of the consideration that favors freedom of expression. Therefore, care should be taken, on the one hand, to avoid an analysis at too high a level of generality since such an analysis does not reflect all data of normative significance. On the other hand, care should also be taken to avoid an analysis at too low a level of generality since an analysis of this nature is liable to ascribe normative significance to data lacking such significance. The doctrine of balance of interests in Israeli law suffers primarily from the first flaw - too high a level of generality that fails to reflect the different degrees of importance of the various aspects of each interest. Israeli courts tend to define conflicting interests at such a high a level of generality that there is not a strong enough common denominator among the various interests with regard to their degree of importance. The most salient examples are the interests of "public welfare" and "public order." The courts have interpreted both of these vague and broad interests to include almost any conceivable legitimate interest. Other interests that have been defined too broadly in case law are "national security" and "freedom of expression".

It is unreasonable to analyze conflicting interests at such a high level of generality when this is combined with a sweeping ranking of interests and general formulas to balance them as Israeli courts have done. When interests are defined at a very high level of generality, a blanket determination that one interest is more important than another is unreasonable since certain aspects of one interest may be more important than certain aspects of another interest, whereas other aspects of the latter interest may be more important than other aspects of the former. For example, a formula that restricts expressions that pose a high probability of danger to public order is unreasonable since it makes no distinction concerning the prerequisite probability between a danger to important aspects of public order - such as the protection of human life - and a danger to less important aspects of public order - such as a slight restriction of freedom of movement.

The distinctions made by the courts between various aspects of the interests under discussion are unsatisfactory The accepted balance of interests formula states that a consideration defined at a high level of abstraction should be given precedence over another consideration that is also defined at a high level of abstraction, provided that preference for the first consideration does not entail a high probability of serious danger to the second consideration. For example, the common principle is that when deciding between freedom of expression and public order, precedence should be given to freedom of expression unless there is a high probability of causing grave harm to public order. This formula distinguishes between various levels of harm to interests according to the severity of injury and between various levels of danger according to the probability of materializing. However, this distinction is insufficient. First of all, it is limited to concrete dangers and does not distinguish between various aspects of interests at an intermediate level; e.g., a distinction should be made between different aspects of "public order" according to their importance - for instance, between protection of human lives and protection of feelings - and not only between concrete dangers to "public order". Secondly, the distinctions made by the Israeli courts primarily focus on only one of the conflicting interests. As stated, the accepted balance of interests formula in case law holds that one consideration should be given precedence as long as this does not create a (high probability of) danger of severe harm to another consideration. This formula does not address the severity of the anticipated harm to the first consideration and the probability of its realization. For example, no distinction is usually made between the various aspects of the consideration that favors freedom of expression - not at the intermediate level of the different kinds of expression and not even at the concrete level of various specific expressions. In this vein, it has been stated that the answer to the question of when freedom of expression should be restricted is dependent on only the strength of the interests that could be harmed by permitting the relevant expression. In fact, the answer to this question of whether a particular expression should be permitted or restricted must also be determined in light of the weight of the considerations that favor freedom of expression (relative to the expression in question), and not just in light of the weight of the opposing considerations that favor the restriction of this expression.

Another problem with the doctrine of balance of interests in Israeli law is the lack of a uniform criterion for ranking considerations. Various criteria emerge from the legal rulings on this subject, including the relative importance of the conflicting considerations, their classification as interests or rights and their constitutional status. Moreover, there is no clear distinction among these criteria or a clear determination of the decisive criterion that should prevail when the application of different criteria leads to different conclusions.

There are additional problems that are related to the distinction made by Israeli case law between "horizontal balance" - between interests of equal status, whereby the stated goal is a compromise or a mutual waiver, without giving precedence to one interest over another - and "vertical balance" - between interests of different statuses, whereby precedence is presumably granted to the interest with a higher status, in particular, through a "probability formula" that gives precedence to one interest over another unless this entails a danger above a certain degree of severity to the conflicting interest. The main problem here concerns the sharp distinction between the two types of balance of interests. According to case law, the category of horizontal balance should only include conflicts of considerations or of interests of equal importance or status, whereas the category of vertical balance should include all conflicts of considerations or of interests of different importance or status, irrespective of the disparity in importance or status, and, particularly, if the difference is small. This approach does not properly reflect the fact that the relative difference in importance between considerations or interests is a matter of degree. The difference in importance between two considerations (interests) could be very large or very small and, consequently, the consideration in favor of giving precedence to the more important interest could be very strong (when the gap in importance is very large) or very weak (when the gap in importance is marginal).

A final problem relates to the meaning of each one of the two types of balance of interests. The distinction made by the Israeli courts between decisions that reflect a compromise in the framework of horizontal balance and decisions that give precedence to one interest in the framework of vertical balance is misleading. In effect, there is no substantive difference between the two types of balance of interests insofar as it concerns the question of whether there is a preference for one interest over another, or a mutual waiver of each of the conflicting interests. On the one hand, the general balance of interests formula employed by the courts - for both vertical and horizontal balance - always reflects a decision whereby one interest takes precedence in certain situations while another interest takes precedence in other situations. This conclusion is not only valid for horizontal balancing - which is expressly described as a decision entailing a compromise or requiring a mutual waiver - but also for vertical balancing - in the general sense that certain requirements are imposed as a condition for infringing on a value. This general sense is reflected, in particular, by the establishment of a formula that combines the severity and the probability of harm to each interest, which states that one interest should be given precedence over the other, unless there is a defined high probability of serious harm to the second interest. The establishment of such a formula means that the harm is divided between the two interests, although not necessarily equally since according to this formula, the lesser interest must also be given precedence in certain situations. In other words, the principle whereby one interest should be given precedence over another, unless there is a high probability of severe harm to the other interest, does not grant absolute priority to any single interest. According to this principle, the first interest should be given preference in certain situations (when there is not a high probability of such harm), and the second interest should be given preference in other situations (when the probability of such a harm to it is beyond a required limit). For example, the formula that maintains that the consideration favoring freedom of expression be given precedence over the consideration favoring national security - unless permitting a specific expression would create a high probability danger of severe harm to national security -means that when a particular expression does not create such a danger, freedom of expression takes precedence, but when it does create such a danger, the protection of national security takes precedence.

On the other hand, the application of any balance of interests formula in a given situation necessarily and, therefore, always, implies the absolute preference for (a particular aspect of) one interest and the absolute rejection of (a particular aspect of) another interest. This conclusion is not only valid for vertical balance, which expressly assigns a preferential status to one interest, but also for horizontal balance, which is described as reflecting a compromise solution or a mutual waiver. The meaning of "mutual waiver" is, as previously stated, the preference of one aspect of a particular interest over another aspect of a conflicting interest, and the preference of a different aspect of the latter interest over another aspect of the former interest. For example, the decision to allow a demonstration to take place while limiting it to a particular time and place in order to protect a given interest means that regarding the possibility of holding the demonstration at a certain time and place, one aspect of the interest of the freedom to demonstrate has been given absolute precedence over the conflicting interest. On the other hand, with regard to the possibility of holding the demonstration at another time and place, a different aspect of the conflicting interest has been given precedence over the freedom to demonstrate.