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Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law

Hastings International and Comparative Law Review, Vol. 31, No. 2, 2008

TICOM Working Paper on Comparative and Transnational Law No. 2008/5

33 Pages Posted: 29 Jul 2008 Last revised: 27 Aug 2008

Jacco Bomhoff

London School of Economics - Law Department

Date Written: June 2008

Abstract

Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic.

The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.

Keywords: Constitutional Law; Judicial Balancing

Suggested Citation

Bomhoff, Jacco, Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law (June 2008). Hastings International and Comparative Law Review, Vol. 31, No. 2, 2008; TICOM Working Paper on Comparative and Transnational Law No. 2008/5. Available at SSRN: https://ssrn.com/abstract=1184843

Jacco Bomhoff (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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