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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Bibliographic Details
Published inInternational journal of constitutional law Vol. 8; no. 2; pp. 263 - 286
Main Authors Cohen-Eliya, Moshe, Porat, Iddo
Format Journal Article
LanguageEnglish
Published 01.04.2010
Subjects
Comparative analysis
Constitutional Law
Constitutionalism
Germany
History of law
Judicial review
Political History
Political systems
Rule of law
U.S.A
United States of America
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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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ISSN:1474-2640
1474-2659
DOI:10.1093/icon/moq004