Balancing Constitutional Rights
The Origins and Meanings of Postwar Legal Discourse

30th Apr 2014 by Valckec

In this terrific new book, Jacco Bomhoff challenges the common view that constitutional adjudication everywhere is converging towards a universal model of “balancing and proportionality”. Through a comprehensive yet remarkably meticulous and nuanced comparative analysis of postwar US and German constitutional legal materials, Bomhoff compellingly demonstrates that balancing in fact is much more than an analytic process, a technique amenable to cognitive appropriation as is, by any constitutional actor so inclined. It rather is, first and foremost, a form of legal argument, which accordingly boasts an intensely discursive not just functionalist dimension. As such, it necessarily and largely is constructed locally—by time- and space-specific groups of actors, as against particular sets of cultural referents. Beyond obvious linguistic similarities, then, hide significantly different forms of constitutional jurisprudence. While acknowledging that constitutional balancing stands out, in all jurisdictions, as a prime locus of interaction of “the formal and the substantive”, Bomhoff shows that these two notions, like their juxtaposition and interaction, have taken on very different meanings in the US and Germany, going so far as to stir respectively different attitudes among local actors. Whereas under its US inception, “formalism” tends to be associated with rules/categories/definitions”, and deployed instrumentally, as a tool of choice for fostering a peculiarly conservative political agenda, its German counterpart connotes concepts/systems, is treated as an integral, thus non-optional, dimension of legal reasoning, and remains steadfastly a-political. “Substantive” likewise evokes policy/case-by-case/pragmatism in the US whereas it conjures up “materialism”, in the sense of values/principles, in Germany. In the US, moreover, the two poles are portrayed as involved in a perpetual state of clash, thus ultimately lending themselves to no more than unstable and somewhat arbitrary compromise. The behavior of German courts in contrast aligns with the grand tradition of German idealism insofar as they aim to synthesize these poles into a smooth and relatively stable overarching understanding. All of which points to fundamentally different attitudes to law and legalism: unrelenting anxiety and skepticism surrounding the imperative of containing state encroachments on individual liberty, on the US side unbridled faith and “enchantment” as to the possibility of “perfecting” the constitutional order into an ever more inclusive, coherent and normatively desirable, for ultimately “human dignity-maximizing”, package. As such, the import of Bomhoff’s remarkable insights reaches far beyond constitutional theory. Following in the footsteps of such prominent comparative law scholars as William Ewald and Mitchell Lasser, Bomhoff paints a brilliant illustration of comparative law as comparative jurisprudence—the comparison, across jurisdictions, of the way that legal actors reason on the inside. A much welcome bright light in the sometimes dry and tedious landscape of traditional comparative law. But he also taps into the core of legal theory writ large, as he boldly exposes the need to take legal plurality seriously, perhaps even to come up with, in time, a conceptualization of law that accounts for such plurality.

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