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The Trouble With “Balance” Metaphors

February 4th, 2011 · 37 Comments

Reading Orin Kerr’s new paper outlining an “equilibrium-adjustment theory” of the Fourth Amendment, I found myself reflecting on how thoroughly the language of “balancing” pervades our thinking about legal and political judgment. The very words “reasonable” and “rational” are tightly linked to “ratio”—which is to say, to relative magnitude or balance. We hope to make decisions on the basis of the weightiest considerations, to make arguments that meet their burden of proof. We’re apt to frame almost any controversy involving heterogenous goods or values as a problem of “striking the right balance” between them, and many of those value dichotomies have become well worn cliches: We’ve all seen the scales loaded with competing state interests and individual rights; with innovation and stability; with freedom and equality; with privacy and security. There’s obviously something we find natural and useful about this frame, but precisely because it’s so ubiquitous as to fade into the background, maybe it’s worth stopping to unpack it a bit, and to consider how the analogy between sound judgment and balancing weights may constrain our thinking in unhealthy ways.

Perhaps the most obvious problem with balancing metaphors is that they suggest a relationship that is always, by necessity, zero sum: If one side rises, the other must fall in exact proportion. Also implicit in balancing talk is the idea that equilibrium is the ideal, and anything that upsets that balance is a change for the worse. That’s probably true if you’re walking a tightrope, but it clearly doesn’t hold in other cases. If you have a perfectly balanced investment portfolio and somebody gives you some shares of stock, the balance is upset (until you can shift some assets around), but you’re plainly better off—and would be better off even if for some reason you couldn’t trade off some of the stock to restore the optimal mix.

In my own area of study, the familiar trope of “balancing privacy and security” is a source of constant frustration to privacy advocates, because while there are clearly sometimes tradeoffs between the two, it often seems that the zero-sum rhetoric of “balancing” leads people to view them as always in conflict. This is, I suspect, the source of much of the psychological appeal of “security theater”: If we implicitly think of privacy and security as balanced on a scale, a loss of privacy is ipso facto a gain in security. It sounds silly when stated explicitly, but the power of frames is precisely that they shape our thinking without being stated explicitly.

There’s a deeper problem, though: Embedded in the idea of the scales is a picture of a process for arriving at sound decisions—which if the metaphor is sufficiently pervasive we may come to think of as the only method for making sound decisions. A scale is a machine for reducing diverse objects—or in the metaphor, interests and values—to a single shared dimension. You might have items as varied as toasters and giraffes on the opposing plates of the scale, but all the scale cares about—or all we care about when we employ it—is that they both have weight and mass. Every other difference between the items in the balance is irrelevant so long as they have this one shared property, this one dimension along which they intersect, which allows us to quantify each in terms of the other.

If you think about the cases in which we employ balancing rhetoric, though, it’s often unclear just what this shared dimension is supposed to be. Sometimes that implicit dimension seems to be the universal currency of happiness or utility—the ultimate good that more concrete values like privacy or utility are presumed to serve. But often the imaginary scales conjured by balancing talk conceal the fact that we don’t have a clear sense of what that shared dimension is supposed to be, what single quantity is supposed to serve as our standard for comparing such heterogenous goods. The jurist or political philosopher who assumes a scale—perhaps without realizing he’s doing so—may be rather like the economist in the old joke who begins by assuming a can opener.

Paradoxically, this may make disagreement seem more intractable than it really is. We often say that even when people are agreed on the facts, they may “assign different weights” to competing values, which if we really did have a single agreed upon scale or dimension along which to balance, could only be understood as some kind of irreducible brute preference.

The distortion is magnified if the values we hope to “weigh” are not just qualitatively different from each other, but internally plural or diverse. Legal scholar Dan Solove, for instance, argues forcefully that “privacy” is not a monolithic value defined by any singular essence, but a cluster concept defined instead by overlapping family resemblances. (The classic example from Wittgenstein is the idea of a “game,” instances of which range from football to chess to Myst to the unstructured pretend-play of Cops and Robbers.) In Solove’s schema, privacy encompasses an array of quite different interests: Colloquially speaking, we recognize that one’s privacy may be violated by physical intrusion on the seclusion of the home, by the disclosure of sensitive or embarrassing personal facts, by the denial of autonomy to make intimate medical or sexual decisions, by the mere knowledge that one’s actions (even one’s “public” actions) are being systematically monitored and recorded, by having one’s image (again, even an ordinary photograph snapped on a public street) plastered on billboards and television without one’s consent. The point is not, of course, that the law should forbid all these things; merely that we find it perfectly intelligible to describe each as, in some sense, an incursion on privacy.

Even bracketing the zero-sum framing problem, think about how squeezing all these dimensions of privacy on to a unidimensional metaphorical scale tends to flatten the debate, at least outside the context of the scholarly journals inhabited by folks like Solove. Obviously, we need to use shorthand terms like “privacy” and “security” to keep discussion manageable, but is it really especially illuminating to treat every proposed security measure as though its consequences can be reduced to quantity subtracted from an undifferentiated lump of privacy stuff, and a quantity added to a blob called security? The task of analysis is always aided when we can render heterogeneous interests more easily comparable by reducing them to some uniform measure, of course, but balance metaphors imply that we’ve already achieved this. This may be why so many legal opinions employing “balancing tests” feel so thin, and so many arguments about where to “strike the right balance” between competing values founder. The metaphor assumes a lot of analytic background work that hasn’t actually been done—and conceals the fact that it still needs to be.

Tags: General Philosophy · Language and Literature · Privacy and Surveillance


       

 

37 responses so far ↓

  • 1 Tweets that mention The Trouble With “Balance” Metaphors -- Topsy.com // Feb 4, 2011 at 4:07 pm

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  • 2 Kevin Donovan // Feb 4, 2011 at 5:30 pm

    This is a great post, Julian. Balance is the discourse surrounding intellectual property rights, too, with open vs. closed on the scales. I’ve long thought, however, that a better framing is “effective” IPR, since, after all, they are an incentive that can be structured more effectively.

    In privacy/security, I think “effective” is a useful framing, too, since intrusive measures that are ineffective as security are obviously a problem.

  • 3 Bryan // Feb 4, 2011 at 7:38 pm

    A closely related idea to that of “balance” is the mental image of a cartesian graph, with say the x-axis as “privacy” and y as “security”, and an “efficiency border”. It seems like this simple mental image would have many of the advantages of the balance metaphor, while still allowing for cases where privacy is violated without increasing security.

    Of course, this doesn’t help when it comes to the general problem of incommensurable values, or the irreducibility of (e.g.) differing notions of privacy to a single dimension.

  • 4 Morning Links | The Agitator // Feb 5, 2011 at 1:28 pm

    [...] The problem with balance metaphors. [...]

  • 5 Nick // Feb 5, 2011 at 2:30 pm

    Scalia: “Having evaluated the interests on both sides as roughly as this, the Court then proceeds to judge which is more important. This process is ordinarily called ‘balancing,’ Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970), but the scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.”
    Bendix Autolite v. Midwesco Enterprises, 486 U.S. 888, 897 (1988).

  • 6 Paul Harrison // Feb 7, 2011 at 12:06 am

    I don’t think balance implies a zero-sum relationship. I take balance as meaning the weights in a a weighted sum of the utilities of the parties involved. Different weights result in a different optimum decision, so the optimum decision is a function of the weights, but not necessarily a simple function.

    Detecting whether or not a game is zero-sum requires knowing these weights. And these weights seem like a reasonable topic of debate.

    There is a sense in which the situation is zero sum: Having chosen weights, the area around the optimum decision will appear to be locally a zero-sum game. Locally the weighted sum will have derivative (close to) zero, so a gain for one component of the sum will be exactly balanced by a loss to another component of the sum. If the debate shifts from choosing weights to choosing the best solution given those weights, as it reaches the optimum it will taken on the character of a zero sum game.

  • 7 Pithlord // Feb 7, 2011 at 3:50 pm

    I disagree, Julian, and I worry you are throwing your lot in with Scalia on this. In law, balancing metaphors compete with command metaphors, and it is the latter which are a lot more authoritarian. The model of corrective and distributive justice as different forms of balance (arithmetic equality between the harm and the remedy or divisional equality of the benefit or burden) goes back to Aristotle as a way of getting out of the model of obedience to the commandments of gods or dead lawmakers which Scalia wants to resurrect.

    Balancing does not require you to abandon Pareto improvements. When you argue that a privacy-impairing measure does not really promote security, you are implicitly using a balancing or proportionality model and just saying nothing weighs in the other side of the balance. But the reality is that there are genuine tradeoffs, and we have to live with that.

    We also have to live with incommensurability. We can’t really measure pain and suffering in dollars, but that isn’t a good reason to deny people who have been injured non-pecuniary damages. Judgment means doing the best with what we’ve got. In legal analysis, there is usually someone we can defer to about relative weights of incommensarables (the democratic process, the contracting parties, maybe the jury) and that’s how we deal with it. But we can still object to the product of those processes when it is clear that they haven’t weighed some relevant interest at all.

  • 8 Patrick L // Feb 7, 2011 at 11:36 pm

    The balancing act is not between security and privacy, but with privacy and justice. Your argument is less absurd when we claim “If we implicitly think of privacy and justice as balanced on a scale, a loss of privacy is ipso facto a gain in justice”. Even if it’s not a one to one relationship (whatever that would mean), it seems to me that a legitimate loss of the respect of one’s privacy and must relate to a rise in the social knowledge of some activity you are innocent or guilty of.

    I think the flatting of the debate is actually useful here, since it lets us take a more Hansonian approach. For example, we can ask “what are the the social functions served by privacy protections?” It seems to me that they are to protect the individual from the costs of engaging in activities we don’t want others to know about. If our duty to Privacy and our duty to Justice are in a balancing act, we each must weigh our desire to punish others for their indiscretions versus the personal benefits to protecting our own hypocrisies. It also helps us understand that a desire for lower privacy on one hand is likely a desire for more unequal enforcement of the law against outgroups, as much as its a show of confidence towards our own ingroup status.

  • 9 sam // Feb 8, 2011 at 1:31 pm

    “The very words “reasonable” and “rational” are tightly linked to “ratio”—which is to say, to relative magnitude or balance.”

    Which, I suspect, is why Plato whenever he spoke of balancing always spoke of proportion at the same time. He believed that a sense of proportion was vital , and without a sense of proportion, there could be no balance in the soul (sophrosyne).

    My intution is that the ordinary (nonacademic) use of the word ‘balance’ tracks this having a sense of proportion closely.

  • 10 Vince // Feb 8, 2011 at 3:41 pm

    Aristotle was big on balance – virtue as the mean between excess and deficiency – but he also emphasized the importance of context. You have to have the wisdom to do the right thing, in the right way, at the right time, in a way that responds to the particulars of the situation. That seems like a good way to take balancing away from the superficial zero-sum, one-dimensional model.

  • 11 sam // Feb 9, 2011 at 8:49 am

    I just reread my comment and was surprised to find that I’d discovered an hitherto unknown fact:
    Plato spoke English!

    Well, I don’t know the Greek for ‘reasonable’ or ‘rational’ or ‘ratio’, — they might be linguistically connected — but I do stand by the rest of my comment, the philosophical archeology notwithstanding.

  • 12 Steve R. // Feb 9, 2011 at 9:50 am

    The concept of balance in the abstract is a desirable goal for copyright. The reality is that balance is undefined. I suppose, I could also throw in the concept of relativity, it all depends on your viewpoint.

    Balance depends on where you place your fulcrum. I would contend that there is NO balance on where the fulcrum is placed. It seems that it is the content holders and their lackeys in Congress that define where the fulcrum will be placed based on their viewpoints.

    Balance, as a concept, is not fixed – it is moving target. Over time the scope and length of copyright have been extended. This has been the result of the misplaced belief by the content holders that they are somehow being treated unfairly.

    Of course no matter how hard one tries to satiate the content holders, they will continue to whine about unfair treatment.

    Given that the content holders define the fulcrum point and can never be appeased, how can balance ever be achieved?

  • 13 Parmenides // Feb 9, 2011 at 11:14 pm

    @sam

    The greek word for all of that is Logos. It means word, reason, ratio and so on.

  • 14 sam // Feb 10, 2011 at 8:05 am

    I knew that that ‘logos’ meant ‘reason’ (also ‘account’), didn’t know it meant ‘ratio’, too. I suppose that does rescue my first comment, in a way. Thanks.

  • 15 Pithlord // Feb 10, 2011 at 2:19 pm

    In the Anglo-American legal system, the metaphor of balance derives from the Chancery. The common law courts expected you to plead a case in accordance with one of a closed set of writs, and then convince a jury that what you said in the writ was true. If you did that (and paid a modest fee to His Majesty’s courts), then you got your relief. If not, you didn’t. Only Parliament could authorize new writs, and it didn’t like to do so.

    The Chancellor’s equitable jurisdiction arose — and even more, its continuing legitimacy — arose from the reality that if the common law system couldn’t be modified in particular cases, it would be grossly unfair and commercially unworkable. Inevitably, the courts of equity had to talk about balance and had to creatively apply general principles to particular instances. The Puritans never liked Equity, preferring plain interpretations of plain texts, and America is a puritanical place. But the framers of the US Constitution recognized that federal courts had to have equitable jurisdiction: Article III, Section 2.

  • 16 carl // Feb 12, 2011 at 4:34 am

    Julian, you appear to be arguing that freedom, equality, justice, access and protection under the law, the BNill of Rights and the Constitution are divisible, that the laws outlawing, say discrmination against certain classes of citizen are perfectly okay if they can be proved to protect one or two classes of citizen perfectly, even if they don’t protect others.

    You’re on your own there.

  • 17 carl // Feb 12, 2011 at 4:35 am

    Julian, you appear to be arguing that freedom, equality, justice, access and protection under the law, the Bill of Rights and the Constitution are divisible, that the laws outlawing, say discrmination against certain classes of citizen are perfectly okay if they can be proved to protect one or two classes of citizen perfectly, even if they don’t protect others.

    You’re on your own there.

  • 18 foo // Feb 12, 2011 at 5:39 am

    “It seems to me that they are to protect the individual from the costs of engaging in activities we don’t want others to know about.”

    Privacy is a psychological need that has nothing to do with unsavoury activities. It’s required for some such activities, but this correlation does not imply causation.

  • 19 Weaver // Feb 12, 2011 at 5:49 am

    It should be noted that within the balance equation, the scales might measure two aspects of the recipe accurately, but the requirement is actually for a totally different concept in scales. We have a requirement for ‘privacy’ which is seen as being on the same sliding scale as ‘security’. As the one quality is increased the other declines. But the end conclusions are totally dependent on the measuring equipment employed in the experiment. We need an wholistic set of scales. As the privacy factor decreases, scales that can measure the degree of invasive aspects of: corporate, targeted marketing; governmental requirement (which less and less, it seems, has to do with preservation of the individual’s personal requirement); and you’re looking at a four-way set of scales just there. Is it necessary to point out that the security factor doesn’t increase….at all. The Descartian, Cartesian thought framework can be very dangerous like that.

  • 20 Charles // Feb 12, 2011 at 7:28 pm

    I think this argument is undercut by the insistence that all mentions of “balance” inherently imply “scale”. Such a linkage may be true for Televised pundits or philosophers but it is unimaginative at best to insist that that linkage, which is one of many, is the only way to frame the term “balance”.

    To provide a metaphorical counterpoint. How is, keeping the “body” of the nation precariously “balanced” on top of our constantly and always shifting load of issues & priorities, zero-sum?

    If this piece was about television pundits then it might as well have been mentioned. As the author qualifies and specifies links between the terms “balance” and “scale” but then attempts to universalize the rest of the argument all the while ignoring the fact that “balance” has many other connotations besides its association with the zero-sum qualities of a “scale”.

  • 21 Julian Sanchez: The Trouble With “Balance” Metaphors « Spam Blocker Blog : // Feb 13, 2011 at 9:58 pm

    [...] Julian Sanchez: The Trouble With “Balance” Metaphors: [...]

  • 22 Richard Stallman // Feb 14, 2011 at 1:33 pm

    You might find http://www.gnu.org/philosophy/misinterpreting-copyright.html
    interesting.

  • 23 Seegras // Feb 14, 2011 at 5:42 pm

    Actually, privacy is a pillar of security. You can’t have security without privacy.

    Because what will happen if you de-value privacy is an enormous amount of fraud, impersonation and identity theft — and it’s no wonder, these crimes are more common in the USA than in Europe, because of lax US privacy laws.

    Not to speak of the kind of “security” you get if you abvolsih privacy altogether: The one where the Gestapo or the Stasi monitors everything.

  • 24 gergi bilyasi // Feb 14, 2011 at 6:08 pm

    Your argument is less absurd when we claim “If we implicitly think of privacy and justice as balanced on a scale, a loss of privacy is ipso facto a gain in justice”. Even if it’s not a one to one relationship (whatever that would mean), it seems to me that a legitimate loss of the respect of one’s privacy and must relate to a rise in the social knowledge of some activity you are innocent or guilty of.

  • 25 Is loss of privacy really a gain in security? « Information Risk // Feb 17, 2011 at 12:47 am

    [...] factors working together to bring the sum down to zero)? Overall Julian has provided really good analogies on the topic but I am walking away with a head full of questions. If we implicitly think of privacy [...]

  • 26 DvisionByZero // Feb 18, 2011 at 9:59 am

    Interesting article.

    The balance metaphor has been with us at least since Aristotle’s “Golden Mean”. In the case of Aristotle the single dimension is character. As you say, in the cases of privacy and security it’s unclear what the single dimension might be. I could suggest a few with perhaps power or control being the most obvious but what if there isn’t one? Does that perhaps suggest that there is a false opposition between privacy and security? I’m not saying that’s the case but it’s an interesting question.

    As for the issue of a zero sum, I’m not sure that it is a necessary component to the balance metaphor. I do agree it is often implicit but to go back to Aristotle the balance he is talking about is more akin to the balance we see, hear, or feel in art. I don’t feel like that’s a zero sum in the same way, if at all. It sounds like you are taking a bit of a game theory approach to balance and I think that’s too narrow.

    Finally, one thing that has always stood out to me about the balance metaphor especially when applied to journalism is that truth is not balanced. It’s very concretely binary. The same is true of good and beauty. Now, we may disagree on them but presenting balance as a desideratum of journalism seems to be a step back from getting at the truth. And maybe truth is not the object of journalism and that may be OK. I know you are using balance in a different sense but I’m not sure there isn’t a relationship. Perhaps it’s that when there is no definitive sense of what’s right we aggregate many viewpoints and hope that on the whole it approximates what is right?

  • 27 Pithlord // Feb 19, 2011 at 4:50 pm

    Here is Lon Fuller in the Morality of Law:

    (T)he utopia of legality cannot be viewed as a situation in which each desideratum of the law’s special morality is realized to perfection. This is no special quality – and certainly no peculiar defect- of the internal morality of law. In every human pursuit we shall always encounter the problem of balabce at some point as we traverse the long road that leads from the abyss of total failure to the heights of human excellence.

    A better philosophy than Scalia’s of certainty uber alles.

  • 28 The Perils of Metaphorical Thinking « Measure of Doubt // Apr 6, 2011 at 10:39 pm

    [...] from candy to women. I came across a great example of misleading metaphors recently via Julian Sanchez, who was complaining about the way policy discussions are often framed in terms of balancing a [...]

  • 29 sac à main // Aug 26, 2011 at 3:22 am

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  • 30 Jan Doggen // Nov 8, 2011 at 6:32 am

    Always nice to see someone do a step backwards and investigate the frames we’re operating from.
    Thanks for reminding me of the ‘zero-sum assumption’ and the ‘unclear shared dimension’ when balancing.

    BTW. I’m currently reading “Ayn Rand – Atlas shrugged”; a warning that ‘balance’ arguments can be misused tremendously. But that’s a different discussion…

  • 31 ティンバーランド // Dec 18, 2011 at 4:33 am

    Your argument is less absurd when we claim “If we implicitly think of privacy and justice as balanced on a scale, a loss of privacy is ipso facto a gain in justice

  • 32 How Shall I Wiretap Thee? Let Me Count the Ways | Cato @ Liberty // Jul 11, 2012 at 12:19 pm

    [...] civil liberties and the needs of intelligence or law enforcement—but even accepting that  problematic metaphor, how can they possibly strike a balance when they can’t even see the scales? Julian [...]

  • 33 What High School Taught Millennials About the War on Terrorism - Rise of the Right // Nov 14, 2012 at 5:59 pm

    [...] flaws and omissions in that passage. For a more subtle criticism, see Julian Sanchez’s astute post about why 4th Amendment “balance” metaphors are problematic. The book next mentions [...]

  • 34 What High School Taught Millennials About the War on Terrorism By Conor Friedersdorf | Awaam by Vision21 // Nov 17, 2012 at 3:54 am

    [...] flaws and omissions in that passage. For a more subtle criticism, see Julian Sanchez’s astute post about why 4th Amendment “balance” metaphors are problematic. The book next mentions [...]

  • 35 What High School Taught Millennials About the War on Terrorism – Conor Friedersdorf – The Atlantic | TheSleuthJournal // Nov 24, 2012 at 2:05 am

    [...] flaws and omissions in that passage. For a more subtle criticism, see Julian Sanchez’s astute post about why 4th Amendment “balance” metaphors are problematic. The book next mentions [...]

  • 36 What High School Taught Millennials About the War on Terrorism – Conor … - Rise of the Right // Nov 28, 2012 at 9:20 am

    [...] flaws and omissions in that passage. For a more subtle criticism, see Julian Sanchez’s astute post about why 4th Amendment “balance” metaphors are problematic. The book next mentions [...]

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