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American Balancing and German Proportionality: The Historical Origins


Moshe Cohen-Eliya


“College of Law and Business; Academic Center of Law and Business

Iddo Porat


Academic Center of Law and Business

September 23, 2008

I-Con: International Journal of Constitutional Law, 2010

Abstract:     
American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality - the historical origins of the two concepts.

We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose - to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

Number of Pages in PDF File: 35

Keywords: balancing, proportionality, global constitutionalism, constitutional law, convergance, legal history

JEL Classification: K19

working papers series





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Date posted: September 24, 2008 ; Last revised: June 10, 2010

Suggested Citation

Cohen-Eliya, Moshe and Porat, Iddo, American Balancing and German Proportionality: The Historical Origins (September 23, 2008). I-Con: International Journal of Constitutional Law, 2010. Available at SSRN: http://ssrn.com/abstract=1272763 or http://dx.doi.org/10.2139/ssrn.1272763

Contact Information

Moshe Cohen-Eliya
“College of Law and Business ( email )
26 Ben-Gurion St.
Ramat-Gan
Israel
Academic Center of Law and Business ( email )
26 Ben-Gurion St.
Ramat Gan
Israel
972-3-6000800 (Phone)
972-3-6000801 (Fax)
Iddo Porat (Contact Author)
Academic Center of Law and Business ( email )
26 Ben Gurion St.
Ramat Gan, 52275
Israel
972-3-6000800 (Phone)
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