By Jacco Bomhoff
The language of balancing is pervasive in constitutional rights jurisprudence worldwide. during this ebook, Jacco Bomhoff deals a comparative and historic account of the origins and meanings of this talismanic kind of language, and of the criminal discourse to which it's imperative. modern dialogue has tended to work out the expanding use of balancing because the manifestation of a globalization of constitutional legislation. This e-book is the 1st to argue that 'balancing' has regularly intended extensively various things in numerous settings. Bomhoff makes use of particular case stories of early post-war US and German constitutional jurisprudence to teach that a similar precise language expresses either biting scepticism and profound religion in legislation and adjudication, and either deep pessimism and excessive aspirations for constitutional rights. An knowing of those significantly assorted meanings is key for any evaluate of the paintings of constitutional courts this present day.
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Extra resources for Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse
33–34. Heck (1933), p. 37. Balancing’s beginnings: concepts and interests 39 (a) A scholarly, private law critique It is important to note that in criticizing conceptual jurisprudence, Heck and his fellow Interessenjurisprudenz writers were primarily targeting a jurisprudential school. hey decried a scholarly tendency to promote a particular vision of legal reasoning and adjudication, rather than the form and content of actual judicial decisions. , p. 40 (commenting favourably on the Reichgericht ’s performance).
894. Lasser (2004), p. 251 (emphasis added). 73 he irst two of these concern the character of, irst, ‘the formal’, and second ‘the substantive’. Both elements can be shown to be contingent in various ways. Chapter 5 examines this contingency, analysing among other things the ways local legal actors typically describe legal formality and its opposites. Would it matter, for example, if in one setting formality were typically equated with rules and ‘ruleness’, whereas in another context the typical references are the ideas of ‘system’ and conceptual reinement?
71 Pound went on to cite a series of cases striking down on constitutional grounds various pieces of legislation intended to protect employees. He did not yet include the case decided in the US Supreme Court on 17 April that year that would shortly aterwards become the main focus for the critique of classical orthodoxy: Lochner v. New York. 72 he line of decisions culminating in Lochner, which included such famous earlier decisions as Allgeyer v. Louisiana (1897), was criticized at the time by other scholars for its obstruction of progressive legislation.