Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse
Jacco Bomhoff - Cambridge University Press 2013
The language of balancing is pervasive in
constitutional rights jurisprudence around the world. In this book, Jacco
Bomhoff offers a comparative and historical account of the origins and meanings
of this talismanic form of language, and of the legal discourse to which it is
central. Contemporary discussion has tended to see the increasing use of
balancing as the manifestation of a globalization of constitutional law. This
book is the first to argue that 'balancing' has always meant radically different
things in different settings. Bomhoff uses detailed case studies of early
post-war US and German constitutional jurisprudence to show that the same unique
language expresses both biting scepticism and profound faith in law and
adjudication, and both deep pessimism and high aspirations for constitutional
rights. An understanding of these radically different meanings is essential for
any evaluation of the work of constitutional courts today
