Reply to Commentators on Proportionality and Constitutional Culture
Jerusalem Review of Legal Studies (2015 Forthcoming)
16 Pages Posted: 1 Dec 2014
Date Written: November 30, 2014
We are very thankful for the opportunity offered to us to have our book discussed in such a remarkable forum and get such excellent comments. The book centers on one of the most prominent elements of global constitutionalism, which is the doctrine of proportionality, and compares it to its corollary in US constitutional law-balancing. The two concepts began their careers as local doctrines, but one of them, proportionality, has witnessed since WWII an overwhelming success and has spread practically to every legal system except the American one. The main thesis in the book is that these concepts are quite similar analytically, but that nevertheless, owing to their different historical, cultural and political settings, they differ in important ways: in meaning, in use, and in centrality. They were shaped by two quite different constitutional cultures - one American and the other European lead by Germany, and have accordingly played different roles in these cultures. Our aim was therefore to present an account that stresses the way these two concepts are embedded in these two different cultures, and one central lesson of the book is that culture matters a lot.
The comments are centered on two main claims - the one descriptive and the other conceptual and normative. On the descriptive side, all three comments argue, in one way or another, that our book inflates the differences between American constitutional culture and German/European constitutional culture. On the conceptual and normative side, Moller objects to our attempt to distinguish between American style purpose review and proportionality. We will hereby address these two types of claims as we respond to the three commentators, as well as to their other points and critiques.
Keywords: Constitutional Law, Jurisprudence, Comparative and Global Constitutional Law, Proportionality, Rights
JEL Classification: K10
Suggested Citation: Suggested Citation