American balancing and German proportionality: The historical origins
In the context of constitutional law, the treatment of proportionality & balancing in the US & Europe (specifically, Germany) are compared. After a review of the analytical structure of proportionality & balancing, it is argued that the analytical differences between the concepts of prop...
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Published in | International journal of constitutional law Vol. 8; no. 2; pp. 263 - 286 |
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Main Authors | , |
Format | Journal Article |
Language | English |
Published |
01.04.2010
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Subjects | |
Online Access | Get full text |
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Summary: | In the context of constitutional law, the treatment of proportionality & balancing in the US & Europe (specifically, Germany) are compared. After a review of the analytical structure of proportionality & balancing, it is argued that the analytical differences between the concepts of proportionality & balancing are not sufficient enough to account for the differing attitudes toward them. Three key arguments are refuted. It is contended that the difference between balancing & proportionality can be discerned via an analysis of the distinct histories of balancing & proportionality. Further, attention is given to how each developed in Germany & the US, highlighting their pro- & antirights associations & their jurisprudential characteristics in terms of formalism & antiformalism. Considered in closing are the implications of the historical analysis regarding attitudinal differences with respect to balancing & proportionality & the potential for conceptual convergence. D. Edelman |
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Bibliography: | ObjectType-Article-1 SourceType-Scholarly Journals-1 ObjectType-Feature-2 content type line 23 ObjectType-Article-2 ObjectType-Feature-1 |
ISSN: | 1474-2640 1474-2659 |
DOI: | 10.1093/icon/moq004 |