Ue local meanings of balancing
This book is about the origins and meanings of one of the central features of postwar Western legal thought and practice: the discourse of balancing in constitutional rights jurisprudence.
This discourse is pervasive in legal systems around the globe. Paradoxically though, its very ubiquity makes it in some ways more difficult to grasp. One important reason for this is the widespread assumption that identical, or nearly identical, terminology will mean more or less the same thing wherever it appears. 1 hat - normally unstated - assumption is only reinforced by the ways in which the imagery of weights and proportions corresponds to popular and scholarly notions of what constitutional rights justice should look like.The central argument of this book is that references to balancing, of rights, values or interests, in case law and legal literature, have a far wider and richer range of meanings than conventional accounts allow for. On a most basic level, this argument builds on a change in perspective from balancing as something we think judges do, to something we know judges say they do - a shift in emphasis, that is, from balancing as doctrine, technique or principle to balancing as discourse. The project for the next few chapters is to uncover what this balancing discourse means to local actors in different legal systems.
These local meanings of balancing, as I show in a case study of German and US constitutional rights jurisprudence, can and do differ dramatically. Uncovering these different meanings matters. This is, after all, the legal language that, more than any other currently in use, constitutional rights jurisprudence turns to for justification, legitimization and critique. This book aims to contribute to an understanding of how so much has come to be invested, in so many different and contradictory ways, in this one particular, talismanic form of legal language.
B.