Balancing Constitutional Rights

Abstract

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.

Proportionality in Comparative Law

“…Most recently, this view has been elaborated by Afroditi Marketou in her subtle investigation of 'local meanings of proportionality' in French, Greek, and English law (Marketou [2021]. See also Hailbronner [2015], Bomhoff [2013]).…”

“…Accounts invoking these factors will often look to the structural features of proportionality reasoning -such as, for example, its perceived ability to synthesize the more formal and the more pragmatic dimensions of judicial reasoning (Hailbronner [2014], Bomhoff [2013]) -or they could highlight a specific 'function' for proportionality review, such as 'legislative rationality review', that is seen as part of a legitimate conception of the judicial role (Petersen [2017]). A range of more external factors also are commonly invoked.…”

Local Meanings of Proportionality

“…149 Proportionality's success or failure ultimately depends on local legal actors' expectations of its use and on locally prevalent criteria for evaluating legal arguments. 150 In different legal contexts, proportionality is ascribed different meanings. Apart from a principle of rights optimisation, it can also be a vector of modernisation, rationalisation or Europeanisation.…”

Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation Restricting Extremist Expressions with Article 19 ICCPR

“…106 Bomhoff too is concerned by this: though he fails to identify any limit to the term 'rights' he insists that one must nonetheless implicitly exist as too broad an application of 'rights' risks undermining the integrity of balancing as an enterprise. 107 This is a reasonable anxiety. Definitional flexibility can be positive, enabling courts to take account of evolving understandings of rights and provide better protection to vulnerable individuals who don't exactly fit within established categories.…”

“…Highlighting particularly the decision in Otto-Preminger-Institut v. Austria, 99 which protected a 'right to religious feelings', Bomhff concludes there is currently next to nothing that would likely be excluded by the ECtHR as a legitimate ground for the limitation of fundamental rights. 100 In view of the lack of boundary on the category of 'rights' set by the ECtHR and the close linguistic corollary between the ECHR and the ICCPR 101 it may be concluded that 'rights' may be equally broadly defined under the ICCPR.…”