By Jacco Bomhoff
The language of balancing is pervasive in constitutional rights jurisprudence around the globe. during this ebook, Jacco Bomhoff deals a comparative and ancient account of the origins and meanings of this talismanic type of language, and of the felony discourse to which it truly is important. modern dialogue has tended to work out the expanding use of balancing because the manifestation of a globalization of constitutional legislation. This publication is the 1st to argue that 'balancing' has constantly intended significantly various things in numerous settings. Bomhoff makes use of targeted case reports of early post-war US and German constitutional jurisprudence to teach that an identical detailed language expresses either biting scepticism and profound religion in legislation and adjudication, and either deep pessimism and excessive aspirations for constitutional rights. An realizing of those significantly various meanings is vital for any assessment of the paintings of constitutional courts this day.
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See further Bomhof (2012a). See Bourdieu (1987), pp. 816f (labelling this ‘the internal logic of juridical functioning’). 22 BALANCING CONSTITUTIONAL RIGHTS A irst principal characteristic of juridical logic stems from the basic demand that courts in liberal democracies should, in principle, ofer publicly stated reasons for their decisions whenever they exercise public authority in order to settle social, political or moral controversies. 47 My claim here is not that judges will always have grand questions of legitimacy foremost in mind, or even that they will always be fully conscious of the broader implications of their arguments in any speciic case.
14 (openly pronounced value judgments ‘invite the criticism of the interested parties or groups to a much higher degree than do genuinely or apparently logical deductions’). 22 Both in Europe and in the US, the elaboration of a ‘scientiic’ legal sphere that would be separate from politics thus became a principal preoccupation of legal scholars. 25 Standard depictions of the ideal character of ‘scientiic law’ in Europe and the US, then, do indeed show striking similarities. In particular, they commonly invoke the same more abstract vocabulary to generalize earlier beliefs and habits.
38 BALANCING CONSTITUTIONAL RIGHTS 3. Conceptual jurisprudence in Germany: Heck’s Begrifsjurisprudenz What, then, was the precise nature of the critique of conceptualism that Philipp Heck and other German authors invoked as the background to their proposals for a jurisprudence of interests? 37 In later work, Heck summarized his critique as follows: he older school, the Jurisprudence of Concepts, coni ned the judge to a function of subsuming facts under legal concepts. Accordingly, the legal order was thought of as a ‘complete’ system of legal concepts, a system which was conceived as a deductive or analytical system.