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American Balancing and German Proportionality: The Historical Origins

I-Con: International Journal of Constitutional Law, 2010

35 Pages Posted: 24 Sep 2008 Last revised: 10 Jun 2010

Moshe Cohen-Eliya

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

Iddo Porat

College of Law and Business - Ramat Gan Law School

Date Written: September 23, 2008

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.

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

JEL Classification: K19

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: https://ssrn.com/abstract=1272763 or http://dx.doi.org/10.2139/ssrn.1272763

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)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel

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