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Two discourses of balancing: the origins and meaning of "balancing" in 1950s and 1960s German and U.S. Constitutional Rights Discourse
References to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to a series of decisions by the German Federal Constitutional Court and the U.S. Supreme Court of the late 1950s and early 1960s and to scholarly debates surrounding these decisions.
Based on a detailed study of these historical origins, the thesis develops 'local meanings' of balancing that show striking differences as between jurisdictions. These local meanings are then compared on a conceptual grid derived from the common problematic of managing the relative formality of the legal order. Balancing in the U.S., in this model, is the expression of a skeptical pragmatism, whereas in German law. it is the centrepiece of an aspirational legalism. Understanding these differences is crucial to an evaluation of the legitimizing potential of balancing-based legal reasoning.
So,...
Show moreReferences to 'balancing' and 'weighing' are ubiquitous in modern constitutional rights adjudication discourse in many Western legal systems. This thesis traces the rise of this form of language to a series of decisions by the German Federal Constitutional Court and the U.S. Supreme Court of the late 1950s and early 1960s and to scholarly debates surrounding these decisions.
Based on a detailed study of these historical origins, the thesis develops 'local meanings' of balancing that show striking differences as between jurisdictions. These local meanings are then compared on a conceptual grid derived from the common problematic of managing the relative formality of the legal order. Balancing in the U.S., in this model, is the expression of a skeptical pragmatism, whereas in German law. it is the centrepiece of an aspirational legalism. Understanding these differences is crucial to an evaluation of the legitimizing potential of balancing-based legal reasoning.
So, while balancing in the U.S. is mostly seen as a pragmatic solution for when legal doctrinal models break down, German balancing is instead the expression of basic choices pertaining to the foundations of the constitutional legal order as a whole.
The range of striking differences found between these meanings counters widely accepted claims as to the convergence of practices of constitutional rights adjudication on a 'balancing model'
Show less- All authors
- Bomhoff, J.A.
- Supervisor
- Gerards, J.H.; Polak, M.V.
- Committee
- Nieuwenhuis, J.H.; Schauer, F.; Zwalve, W.J.
- Qualification
- Doctor (dr.)
- Awarding Institution
- Faculty of Law , Leiden University
- Date
- 2012-09-25
Juridical information
- Court
- LEI Universiteit Leiden