The aim of this book is to uncover different local meanings for the language of balancing.

This chapter begins that project by first chal­lenging the diametrically opposite claim: the suggestion that con­stitutional jurisprudence finds itself in a global age of balancing.

In Section A, I discuss what this opposing claim means and what its foundations and implications are. The remainder of the chapter sets out the contours of the challenge. Section B shows how comparative studies of balancing and proportionality commonly fail to distin­guish between balancing as discourse and as process, and discusses how this conflation sustains an overly uniform understanding of what balancing is. An alternative approach is presented in Section C. Balancing, I argue, should be approached, not as a fixed analyt­ical structure, but as a form of legal argument. The meaning of this argument can be studied in terms of the contribution legal actors in any given system think it is able to make to the legitimization of the exercise of public authority under law. In Section D, I relate this legit­imization imperative to an underlying dilemma shared by Western legal orders: that of maintaining law's essential semi-autonomy, or, in other words: of the discursive management of the formal versus substantive opposition. As a universal dilemma with local manifesta­tions, the formal versus substantive opposition is a useful point of ref­erence for comparative studies of legal discourse. It is also, of course, instrumental to solving the puzzle set out in the Introduction, of how turns to balancing might be reconciled with turns to legalism - a puz­zle to which Chapter 5 will return. Section E, finally, introduces the case studies of balancing discourse in German and US jurisprudence that occupy Chapters 2, 3 and 4.

A.

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