Balancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on... Show moreBalancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on which this study focuses: the European Court of Human Rights and the Court of Justice of the European Union. In a reaction to the growing critique on both Courts for a lack of clarity of their rulings, especially those rulings in which they rely on balancing, this study aims at answering the question whether the Courts__ frequent references to the notion of balancing contribute to the intelligibility and transparency of their decisions in cases concerning conflicts of fundamental rights and/or interests. In order to do so, this study combines a legal-theoretical research into balancing with an analysis of the __balancing case-law__ of the two European Courts. The legal-theoretical research leads to an __ideal type__ of balancing that provides a yardstick for the evaluation of the balancing case-law of the Courts. As it is found that the rulings of both Courts can be improved with regard to the application of the notion of balancing, proposals are made to improve the Strasbourg and Luxembourg balancing practices. When doing so, the study pays heed to the challenges the Courts face as a result of the multi-levelness of the European system of fundamental rights protection. Show less
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... 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
