I-Con: International Journal of Constitutional Law, 2010
35 Pages Posted: 24 Sep 2008 Last revised: 10 Jun 2010
Date Written: September 23, 2008
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: 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