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Genealogies of balancing as discourse

Bomhoff, Jacco (2010) Genealogies of balancing as discourse. Law and Ethics of Human Rights, 4 (1). pp. 109-139. ISSN 1938-2545

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Abstract

The language of balancing and proportionality figures increasingly, often in judicial and academic constitutional legal reasoning in Western democracies. The spread of this particular form of discourse raises important methodological and substantive issues for scholars of comparative law. While the dominant narrative in the relevant lines of scholarship has long been one of similarity and convergence, this article argues that not enough attention has been paid to the possibility of difference—the idea that references to balancing might mean very different things in different settings. In Parts I and II, the article suggests that a methodological shift—from a focus on balancing as doctrine to a focus on balancing as legal argument—will be necessary to bring out these different meanings. Based on a case study of early and mid-twentieth century practices in Germany and the United States, it is argued that one crucial difference in the local meanings of balancing in these settings relates to the extent to which choices of legal form are locally expected to have inherent substantive implications (Parts III and IV).

Item Type: Article
Official URL: http://www.bepress.com/lehr/
Additional Information: © 2010 The Berkeley Electronic Press
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 26 May 2010 10:33
URL: http://eprints.lse.ac.uk/28126/

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