By Jacco Bomhoff
The language of balancing is pervasive in constitutional rights jurisprudence all over the world. during this booklet, Jacco Bomhoff deals a comparative and old account of the origins and meanings of this talismanic type of language, and of the felony discourse to which it truly is imperative. modern dialogue has tended to determine the expanding use of balancing because the manifestation of a globalization of constitutional legislation. This ebook is the 1st to argue that 'balancing' has regularly intended extensively various things in several settings. Bomhoff makes use of distinct case stories of early post-war US and German constitutional jurisprudence to teach that an identical specified language expresses either biting scepticism and profound religion in legislations and adjudication, and either deep pessimism and excessive aspirations for constitutional rights. An figuring out of those noticeably varied meanings is vital for any evaluate of the paintings of constitutional courts this day.
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Additional resources for Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse
1f, 410. Ibid. 68 Lasser (2001), pp. 896f. Ibid. 71 hese diferent forms of co-existence – ‘combination’, ‘bifurcation’, perhaps others – in turn correspond to an underlying problematic that typiies the relevant system. 72 hat is quite a claim. But this line of inquiry does hold enormous potential for a comparative study of the discourse of balancing. In particular, it opens up the possibility that the same language may, in diferent settings, be the manifestation of very diferent kinds of encounters between legal formality and its opposites.
At p. 103 Heck cites Weber’s depiction of formal legal science. Rümelin (1930), p. 9; Heck (1933), pp. 33–34. Heck (1933), p. 37. Balancing’s beginnings: concepts and interests 39 (a) A scholarly, private law critique It is important to note that in criticizing conceptual jurisprudence, Heck and his fellow Interessenjurisprudenz writers were primarily targeting a jurisprudential school. hey decried a scholarly tendency to promote a particular vision of legal reasoning and adjudication, rather than the form and content of actual judicial decisions.
49. 34 BALANCING CONSTITUTIONAL RIGHTS First, it is an investigation speciically of what could be called ‘the balancer’s account’ of classical orthodoxy. his is precisely the anti-image Heck, Pound and their contemporaries had in mind when developing their alternative visions. hat image is important as it formed part of the meaning of balancing at its inception, in a negative sense, as a reminder of all that the new methods should seek to avoid. 9 One argument I make in this chapter and in Chapter 5, is that this ‘pendulum swing’ narrative of thesis–antithesis which is pervasive in American legal thinking,10 does not adequately capture the nature of the continued relevance of classical legal thought, neither in Europe nor in the US, although for very diferent reasons.
Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse by Jacco Bomhoff