Balancing, the global and the local: Judicial balancing as a problematic topic in comparative (constitutional) law
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons. First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic. The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Charles-Maxime Panaccio (2011). In Defence of Two-Step Balancing and Proportionality in Rights Adjudication. Canadian Journal of Law and Jurisprudence 24 (1):109-128.
Re'em Segev (2009). Balancing, Judicial Review and Disobedience: Comments on Richard Posner’s Analysis of Anti-Terror Measures (Not a Suicide Pact). Israel Law Review 43 (2):234-247.
Jan-R. Sieckmann (2003). Why Non-Monotonic Logic is Inadequate to Represent Balancing Arguments. Artificial Intelligence and Law 11 (2-3):211-219.
Joseph P. Demarco & Paul J. Ford (2006). Balancing in Ethical Deliberation: Superior to Specification and Casuistry. Journal of Medicine and Philosophy 31 (5):483 – 497.
Jacco Bomhoff (2010). Genealogies of Balancing as Discourse. Law and Ethics of Human Rights 4 (1):109-139.
Eveline T. Feteris (2008). The Rational Reconstruction of Weighing and Balancing on the Basis of Teleological-Evaluative Considerations in the Justification of Judicial Decisions. Ratio Juris 21 (4):481-495.
Henry S. Richardson (2000). Specifying, Balancing, and Interpreting Bioethical Principles. Journal of Medicine and Philosophy 25 (3):285 – 307.
Added to index2009-01-28
Total downloads8 ( #256,763 of 1,707,798 )
Recent downloads (6 months)1 ( #352,886 of 1,707,798 )
How can I increase my downloads?